Matter of Zang

In 1982 the State Bar charged attorneys C. Peter Whitmer and Stephen M. Zang (“respondents”) with numerous ethical violations. The charges were presented to Special Local Administrative Committee S-25 of the State Bar (the “Committee”), which found Zang and Whitmer guilty of six ethical violations. The Committee recommended that Zang be suspended from the practice of law for one year and that Whitmer be suspended for six months. See Former Rules 31-35, Ariz.R.S.Ct., 17A A.R.S. 1

Zang and Whitmer presented objections to the Committee’s findings and recommendations to the Disciplinary Commission of the Supreme Court of Arizona (the “Commission”). After independently reviewing the record, hearing oral argument, and questioning respondents, the Commission affirmed five of the six ethical violations found by the Committee. 2 Specifically, the Commission found: first, that Zang and Whitmer had engaged in false and misleading advertising; second, that Zang had falsely presented himself, in advertisements and letters, as a Fellow of the Amer *136 ican Academy of Forensic Sciences and of the American College of Legal Medicine; 3 third, that Zang had knowingly failed to honor( a subrogation right; fourth, that Zang knowingly had accepted money tendered in error as part of a personal injury settlement; and fifth, that Zang had collected an excessive fee. 4 The Commission recommended that Zang be suspended for one year, Whitmer for ninety days.

Zang and Whitmer filed objections to the Commission’s report with this court. They disputed the Commission’s findings and recommendations with respect to each of the charges. Respondents also argue that they were denied their due process right to have the charges adjudicated by a fair and impartial tribunal.

We review respondents’ objections as an independent trier of fact and law. In re Kersting, 151 Ariz. 171, 172, 726 P.2d 587, 588 (1986); In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). Although findings of the Committee and the Commission are entitled to “great weight,” particularly when they turn on the credibility of witnesses, we will not impose discipline unless our independent review of the record convinces us that the Bar’s charges are supported by clear and convincing evidence. We must be convinced, in other words, that the truth of the Bar’s allegations is “highly probable.” Neville, 147 Ariz. at 111, 708 P.2d at 1302; accord Kersting, 151 Ariz. at 172, 726 P.2d at 588.

I. DUE PROCESS

Under the due process clause of the fourteenth amendment, respondents were entitled to a fair hearing before an impartial tribunal. Withrow v. Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975); In re Davis, 129 Ariz. 1, 3, 628 P.2d 38, 40 (1981). Respondents claim that the Committee violated their right to a fair hearing in several ways. We turn first to the procedure followed by the Committee and then to the specifics of respondents’ arguments.

A. Procedural Background

The procedural facts giving rise to respondents’ allegations are essentially undisputed. The State Bar assigned this matter to the Committee for investigation after receiving numerous complaints about respondents’ practice and advertisements. The Committee appointed bar counsel, who investigated Zang and Whitmer during the fall of 1982. The investigation resulted in formal charges, contained in a ten-count complaint issued by the Committee on December 14, 1982. Respondents answered the complaint and then filed numerous motions alleging lack of notice, improper discovery requests, and lack of probable cause. Their motions were denied by the Committee. Respondents filed a special action, 5 but we declined jurisdiction on June 28, 1983.

On July 1, 1983, Edwin F. Hendricks, lead bar counsel, wrote to the Committee chairman scheduling a meeting with the Committee for July 5. The purpose of the meeting, according to the letter, was to discuss amending the complaint in light of interviews and research conducted by bar counsel during the six months since the complaint was filed. The letter also requested an “order giving the respondents and their counsel a deadline for responding to our long-standing discovery requests ____”

The July 5 meeting was attended by two of the three Committee members and all bar counsel. Respondents’ subsequent objections to the meeting and their efforts to discover the subjects discussed at the meeting, including the July 1 letter summarized above, were initially rebuffed by bar coun *137 sel’s assertion of the attorney-client privilege. Mr. Hendricks, however, did give respondents an affidavit describing the general nature and content of the meeting. 6

Consistent with Mr. Hendricks’s prior affidavit, subsequent discovery permitted by this court revealed that the July 5 meeting was limited to a report of bar counsel’s ongoing investigation and research. Bar counsel suggested that numerous charges be dropped, that other charges be modified to conform to the evidence discovered as of that date, and that one new charge be added. The Committee members present did not discuss the evidence in the presence of bar counsel. All three Committee members met later that day, without bar counsel, and decided to accept bar counsel’s recommendations. No ex parte contacts between bar counsel and the Committee occurred after July 5, 1983, other than a few letters involving scheduling matters and one letter requesting bar counsel to explain which counts had been deleted from the complaint.

In August 1983, respondents filed motions to disqualify the Committee and bar counsel. The respondents’ motions were based on bar counsel’s ex parte contact with the Committee at the July 5 meeting and on the notion that the Committee had improperly combined investigative, prosecutorial, and adjudicative functions. After a hearing on these and other pretrial motions, the Committee denied respondents’ motions for disqualification.

Respondents’ disciplinary hearing before the Committee commenced six months after the July 5 meeting. The hearing occurred between January 23 and January 27 and between March 21 and March 24,1984. At the end of the January session, the complaint was amended to add an additional charge. Respondents were not required to defend against the additional charge until the March session.

Unsuccessful before the Committee, respondents presented their due process arguments to the Disciplinary Commission during its review of the Committee’s decision. After independently reviewing the record, the Commission unanimously concluded that “members of Special Administrative Committee S-25 were not biased [or] prejudiced,” and that “[t]he conduct of Bar Counsel and the members of Special Committee S-25 did not constitute a denial of due process or of Respondents’ right to a fair hearing.” Commission Report (“CR”), at 7-8.

B. Discussion

1. Merging Investigative, Prosecutorial, and Adjudicative Functions

Respondents argue that the Committee deprived them of their due process right to an impartial tribunal by improperly combining the roles of investigator, prosecutor, and adjudicator. This argument is not supported by either our former rules or well-established precedent.

Former Rule 33(b)(2) required the Committee to conduct a preliminary investigation to determine whether there was probable cause, to conduct “such additional investigation as it deem[ed] necessary,” and then, if warranted, to issue a formal complaint. Once the Committee issued a complaint, former Rule 35 required it to hold a formal hearing, decide the merits of the complaint, and then recommend discipline to the Commission and this court. The rules also authorized the Committee to select bar counsel to aid in the investigation and presentation of evidence. Former Rule 33(b)(2); see also Former Rule 33(b)(3) (staff examiners may be employed to conduct the investigation “under the supervision of bar counsel”).

We rejected a procedural due process challenge to our former rules in Davis, supra. Relying on the United States Supreme Court’s decision in Withrow, supra, Davis held that the Committee properly may conduct the initial investigation, determine probable cause, and then adjudicate *138 the merits of a disciplinary action. 129 Ariz. at 3, 628 P.2d at 40. Withrow reasoned that these three functions have different purposes and are based on different evidence and standards. Consequently, just as judges may “issue arrest warrants on the basis” of probable cause and then preside over the defendant’s criminal trial, Committee members may “receive the results of investigations, ... approve the filing of ... formal complaints instituting enforcement proceedings, and then ... participate in the ensuing hearings. This mode of procedure does not violate ... due process of law.” Withrow, 421 U.S. at 56, 95 S.Ct. at 1469; see also id. at 52, 95 S.Ct. at 1467 (quoting 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 13.02, at 175 (1958)) (“[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a [per se] denial of due process”); Davis, 129 Ariz. at 3, 628 P.2d at 40.

We reaffirm the principles announced in Davis. Committee members are people of integrity, legal training, and intellectual discipline, capable of determining probable cause and then fairly and impartially adjudicating the merits of a disciplinary action. Accordingly, we hold that the procedures authorized by our former rules do not violate due process of law.

The Committee’s actions in the present case were clearly within the bounds set by our former rules. The procedures used here are far less troublesome than those upheld in either Davis or Withrow. In this case, the Committee ordered bar counsel to conduct an investigation. The Committee then determined probable cause on the basis of evidence submitted by bar counsel. Under Davis and Withrow, the Committee could have conducted the initial investigation itself, instead of limiting its prehearing role to determining probable cause. Surely, if the Committee could have conducted the initial investigation itself, thus exposing its members to a firsthand look at the evidence, it is permissible for the Committee to play a more limited role by appointing bar counsel to assist it. See Davis; Withrow.

2. Specific Objections Alleging Actual Bias or Advocating a Per Se Rule

Withrow and Davis recognize, of course, that combining investigative and adjudicative functions in one body creates some potential for prejudgment bias and prejudice. Both cases, however, place the burden on respondents to prove at least a significant likelihood of actual prejudice. “Without a showing to the contrary,” we assume that Committee members are “ ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” Withrow, 421 U.S. at 55, 95 S.Ct. at 1468 (quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941)); accord Davis, 129 Ariz. at 3, 628 P.2d at 40.

Respondents argue that three of the Committee’s actions were sufficiently egregious to demonstrate actual bias or to warrant application of a per se rule: (1) the Committee’s agreement to amend the complaint, (2) its ex parte contact with bar counsel at the July 5 meeting, and (3) its agreement to bar discovery of the July 5 meeting on the basis of the attorney-client privilege.

Respondents’ first argument does not require extended discussion. Former Rule 33(a)(1) authorized the Committee to bring charges by request of the Commission, this court, or “upon its own motion.” Former Rule 34(c) authorized the Committee to amend the complaint “to include further charges, whether occurring before or after the commencement of the disciplinary hearing.” In re Riley, 142 Ariz. 604, 609, 691 P.2d 695, 700 (1984), upheld this power to amend, “so long as care is taken to assure that the respondent has a reasonable time and an appropriate opportunity to respond to the additional charges____” Here, the complaint was amended at the close of the January session of the disciplinary hearing. Respondents did not have to defend against the additional charge until the March session, at which time respondents’ attorneys assured the Committee: “We are prepared to defend against those *139 two particular cases.” Hearing Transcript (“HT”) Yol. II (2d Sess.), at 142-43. We hold that respondents had sufficient time to meet the charges.

We also are unpersuaded that the July 5 meeting between Committee members and bar counsel violated respondents’ due process rights. Respondents rely on Western Gillette, Inc. v. Arizona Corporation Commission, 121 Ariz. 541, 592 P.2d 375 (App.1979), but that case does not support their argument. The ex parte contacts in Western Gillette took place after an evidentiary hearing, before the commission had ruled on the merits. The attorneys involved in the ex parte communications commented on the evidence and even provided the commission with a proposed form of judgment that later was adopted without notice to the opposing parties. On these facts, the court of appeals correctly held that “participation in the actual decision making process by only one party to a controversy is inimical to the notions of fairness which underlie the due process of law.” 121 Ariz. at 542, 592 P.2d at 376 (emphasis added).

In the present case, bar counsel did not participate in the actual decision making process. The July 5 meeting concerned probable cause and amendments to the complaint, not the merits of the charges. Furthermore, the July .5 meeting occurred more than six months before the disciplinary hearing began. The broad discovery we allowed respondents to conduct into the nature and content of the July 5 meeting uncovered no hint of unfairness or bias. On these facts, the July 5 meeting is indistinguishable from the ex parte investigations upheld in Davis and Withrow. We are unwilling to hold that four years of discovery, hearings, and appellate review must be disregarded on the basis of an innocuous one-hour meeting.

Furthermore, even if the July 5 meeting had been a technical violation of respondents’ procedural due process rights, any error has been cured by our order allowing discovery and by the independent, de novo review conducted by both the Commission and this court. Far more egregious ex parte contacts than occurred here have been cured by de novo review or by notifying the opposing party of the contact and then allowing further hearings, discovery, or argument. See, e.g., McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (1985) (ex parte contact with judge cured by notice, further argument, and judge’s ability to disregard ex parte communication), ce rt. denied, — U.S.-, 107 S.Ct. 1956, 95 L.Ed.2d 529 (1987); State ex rel. Corbin v. Arizona Corporation Commission, 143 Ariz. 219, 693 P.2d 362 (App.1984) (ex parte contacts between attorney and commission member cured by removing offending officer, reviewing the record, and allowing additional argument and briefing by the parties); In re Logan, 71 N.J. 583, 367 A.2d 419 (1976) (prosecutor’s participation in disciplinary committee’s deliberations cured by de novo review).

Finally, respondents argue that bar counsel’s initial assertion of the attorney-client privilege to block discovery about the July 5 meeting constituted an independent due process violation. Respondents assert that a per se rule is justified because the Committee “viewed bar counsel as its own lawyer in these proceedings,” creating “a relationship of trust and confidentiality” between bar counsel and the Committee “that Zang and Whitmer’s attorney could never approach.” Respondents’ Supplemental Brief, at 6.

Respondents’ assertion that bar counsel enjoyed an improper relationship of trust and confidence with the Committee is unsupported by the record. Neither respondents’ discovery nor our search of the hearing record revealed any evidence of bias or of a confidential or favored relationship between the Committee and bar counsel. On the contrary, the record reveals a consistent effort by the Committee to be fair and impartial. The Committee ruled against bar counsel on numerous issues, substantive as well as procedural; nothing suggests that the Committee favored bar counsel. As the Committee’s investigators, bar counsel communicated to the Committee nothing more than investigative information. As the Committee’s counsel, bar *140 counsel provided nothing more than legal advice on procedural issues, such as amending the complaint. Because the Committee could have acted as its own investigator and advisor and reviewed the same evidence firsthand, see ante, bar counsel did not violate due process by communicating the results of its investigation to the Committee. Respondents’ due process rights were not violated in this case.4 ** 7

II. FALSE AND MISLEADING ADVERTISING

A. Background

Zang and Whitmer are charged with false and misleading advertising in violation of DR 2-101(A) and DR 1-102(A)(4), which state, réspectively:

(A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

(A) A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

This charge is based on four print and nine video advertisements that appeared in Phoenix-area newspapers and on Phoenix-area television stations during 1982 and 1983.

All four print advertisements contained the bold-faced caption “Law is Civilized Warfare!” above a picture of Zang and Whitmer and to the left of the following language:

We’re the [or “a”] personal injury law firm:

*with the medical experience to understand complicated injuries

*with investigators to find witnesses and hidden evidence

*with computers for speed, accuracy and research

Free Consultation

No recovery—no attorneys’ fee

Each print advertisement also contained a photograph and a statement emphasizing some aspect of respondents’ practice. The photographs featured either a judge in a courtroom, a computer circuit board leaning against several books about accident cases and medicine, a large reproduction of a fingerprint, or a woman sitting in a witness box. Beneath one of these photographs, each advertisement featured one of the following statements:

If you’re in an accident ... You need a lawyer with facts and know-how, not just words.

Detailed Preparation

is part of Zang & Whitmer, Chtd. because: the better your case is prepared for trial, the more likely your case will settle out of court without delay or hassles.

(emphasis added).

If you’re in an accident ... You need more than a lawyers’ [sic] words!

Medicine and Law

are combined at Zang & Whitmer, Chtd. because: to prove serious injury and future suffering, your lawyer must have the knowledge to make complicated medical facts clear for the jury.

(emphasis added).

If you’re hurt in an accident ... You need more than a lawyer’s words!

Licensed Investigators

are part of Zang & Whitmer, Chtd. because: an investigator searches out witnesses, examines evidence at the accident *141 scene, and discovers the facts essential for victory in the courtroom.

(emphasis added).

If you’re hurt in an accident ... You need a lawyer with facts and know-how, not just words.

Evidence

is part of Zang & Whitmer, Chtd. because: the defense will use words and opinions to minimize their fault and your injuries. Only proof of facts will stop them.

(emphasis added).

Like the print advertisements, respondents’ television advertisements emphasized the advantages of investigators and medical knowledge. The television advertisements also were very dramatic. They featured an authoritative-sounding narrator and either frenetic or peaceful music as a backdrop for pictures of an automobile accident, a worried couple in a hospital waiting room, or a father kissing his daughter goodbye, apparently for the last time. Each of the television advertisements ended with a climactic scene showing Mr. Zang arguing before a jury in a courtroom, with the viewer visually located behind the jury box. 8

The Committee and the Commission concluded that respondents’ advertisements portrayed respondents as willing and able to take, and as actually taking, personal injury cases to trial. The Committee and the Commission concluded that the advertisements were false and misleading because, in fact, respondents “scrupulously avoided” taking cases to trial. CR, at 11-28; Committee Opinion (“CO”), at 10-16.

B. Discussion

1. Constitutional Protection

We note at the outset that respondents’ advertisements are “commercial speech” protected by the first amendment. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). As respondents candidly acknowledge, however, the proscription of false and misleading advertising in DR 2-101 is constitutionally unobjectionable. See Zauderer v. Office of Disciplinabry Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985) (state may “prevent the dissemination of commercial speech that is false, deceptive, or misleading”); In re R.M.J., 455 U.S. 191, 202-03, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) (same); Friedman v. Rogers, 440 U.S. 1, 9-10, 99 S.Ct. 887, 894, 59 L.Ed.2d 100 (1979) (same); Bates, 433 U.S. at 383, 97 S.Ct. at 2709 (same); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72, 96 S.Ct. 1817, 1830-31, 48 L.Ed.2d 346 (1976) (same).

“[T]he extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides____” Zauderer, 471 U.S. at 651, 105 S.Ct. at 2282; see also Virginia State Board of Pharmacy, 425 U.S. at 780-81, 96 S.Ct. at 1834-35 (Stewart, J., concurring). Consequently, false or misleading commercial speech has little or no constitutional value and may be “prohibited entirely.” R.M.J., 455 U.S. at 203, 102 S.Ct. at 937. “Indeed, the elimination of false and deceptive claims serves to promote the one facet of commercial ... advertising that warrants First Amendment protection—its contribution to the flow of accurate and reliable information relevant to public and private decisionmaking." Virginia State Board of Pharmacy, 425 U.S. at 781, 96 S.Ct. at 1835 (Stewart, J., concurring) (emphasis added); cf Zauderer, 471 U.S. at 651, 105 S.Ct. at 2282 (state bar may constitutionally require attorneys to include additional information to assure that advertisements are not misleading).

In short, the constitution does not prevent discipline in this case if respondents’ advertisements were false and misleading. 9 *142 We therefore must determine (1) what message respondents’ advertisements conveyed, and (2) whether that message was false or inherently misleading.

2. The Message

The Committee and the Commission found that at least one of the messages conveyed by respondents’ advertisements was that the law firm of Zang & Whitmer was willing and able to try, and actually did try, personal injury cases. The Commission concluded that respondents’ print advertisements plainly suggest that attorneys at Zang & Whitmer “prepare cases for trial, combine medicine, and law to present facts clearly to the jury, do presentations to juries, use investigators to aid in obtaining victory in the courtroom, and prove facts and defeat defenses in court.” CR, at 14. In like manner, it found that respondents’ television advertisements suggest “that Zang and Whitmer take cases to court and argue before juries.” Id. at 15. After reviewing the record, we agree that respondents’ advertisements would “be interpreted by a reasonable person as representations that Respondents have an unusually high level of expertise and experience in personal injury law, specifically including trial experience.” Id. at 15-16.

Both the bar and the respondents called advertising and advertising law experts. The experts gave their opinions regarding the message conveyed by respondents’ advertisements. With all deference to the experts, and without deprecating or passing upon the admissibility of their opinions, we find no need to rely upon expert testimony to interpret the messages conveyed by the advertisements in evidence. As a matter of common sense, we find that depicting a lawyer trying a case conveys the idea that the lawyer tries cases. When Zang is shown arguing a case to a jury, the message is that Zang argues cases to juries. Accordingly, we hold that one message conveyed by respondents’ advertisements was that Zang & Whitmer had tried personal injury cases in the past and were ready and able to prepare future cases for trial and to try them.

3. Were Respondents’ Advertisements Misleading?

The Committee and the Commission found that respondents’ advertisements were false and misleading because they did not accurately portray respondents’ practice. Zang & Whitmer was formed in 1979. From that time until the advertisements at issue appeared in 1982 and 1983, no attorney at Zang & Whitmer had tried a personal injury case to a conclusion. HT Vol. IV (2d Sess.), at 265. Zang and Whitmer personally started only one trial, but a mistrial was declared after the first witness testified. Id. at 265-67.

Zang, who holds a medical as well as a legal degree, has experience as a medical trial consultant, but has never tried a personal injury case. He conceded that although he felt fully capable of preparing personal injury cases for trial, he is not competent to try a personal injury case. Id. at 270; CR, at 22. Whitmer has criminal trial experience, having spent several years with the county attorney’s office shortly after he graduated from law school. His only personal injury trial experience, however, consists of three or four trials that occurred more than ten years ago. HT Vol. II (2d Sess.), at 90-91, 155-56.

Most importantly, Zang & Whitmer consciously followed a firm policy of not taking cases to trial. CR, at 16. Respondents believed that pretrial settlements invariably obtained better results for their clients. They settled cases before trial whenever possible. In the few cases where a trial was necessary, respondents’ policy was to refer cases to trial lawyers in other firms. Id. at 16, 20; CO, at 10-16. Thus, as the Commission concluded, “while [respondents] represented themselves as having the willingness to try cases, they in fact scrupulously avoided” litigation or trial work of any kind. CR, at 22.

*143 The evidence clearly demonstrates that respondents did not offer the trial services portrayed in their advertisements. Contrary to their print advertisements, respondents had not and did not prepare cases for trial, “make complicated medical facts clear for the jury,” or strive for “victory in the courtroom.” Nor did they argue cases in front of juries as their television advertisements suggested. Their intention was to settle all cases. Even if a settlement could not be reached, respondents had no intention of personally taking their clients’ cases to trial.

We agree with the Committee and the Commission that respondents’ advertisements were false and misleading. When consumers “ehoose[ ] a lawyer through the advertising process, [they] ha[ve] a right to expect that [their] lawyer will be able and willing to act in the manner represented. In this case, it is clear that respondents had no intention of taking a case personally to trial, and that express and implied representations of their courtroom abilities were false, misleading, and untruthful.” CR, at 22-23.

4. Respondents’ Objections

Respondents argue that their advertisements were not false because they accurately suggest only that Zang & Whitmer has an unusually high level of expertise in personal injury law, which occasionally includes trial work. Respondents support this assertion with two pieces of evidence: the expert testimony of Professor Gerald Thain and statistics about the frequency of litigation in personal injury cases.

According to Professor Thain, a law professor specializing in advertising law, respondents’ advertisements suggest that Zang & Whitmer will do what is necessary to get the best possible result for its clients, including going to court, if necessary. This suggestion is not misleading, according to Professor Thain, because the references to trial work add little to the public’s preexisting perception that all lawyers appear in court. Because the public already incorrectly believes that all lawyers appear in court, consumers will not be misled further by respondents’ references to trial work.

Professor Thain’s testimony does not aid respondents’ cause. As Professor Thain conceded, because respondents personally were unwilling and unable to take cases to court, their advertisements technically were false. Furthermore, that some consumers incorrectly believe that all lawyers routinely appear in court, does not give respondents license to present their practice in a false light. Disciplinary Rule 2-101(A) prohibits false and misleading claims, even if those claims serve only to reinforce consumers’ prior misconceptions.4 ***** 10

Respondents’ second argument is that their advertisements were not misleading because respondents “litigated” as many cases as most other personal injury attorneys and also referred cases to outside trial counsel when necessary. The evidence fails to support these assertions. Expert testimony established that approximately five percent of the personal injury cases that have been filed go to trial. See HT Vol. III (1st Sess.), at 66; HT Yol. IV (1st Sess.), at 73. Zang testified that Zang & Whitmer filed complaints in only approximately five percent of their eases in 1980. None of those cases actually was tried by anyone from Zang & Whitmer. Indeed, Zang was unable to remember even taking depositions in more than a handful of cases.

There was no expert testimony on the percentage of cases in which lawyers file complaints. However, because most personal injury attorneys actually take five percent of their cases to trial and most cases settle before trial, it is fair to assume that most lawyers file complaints in far more than five percent of their personal *144 injury cases. In this context, Zang’s assertion that five percent of respondents’ cases were “in litigation” in 1980 does not establish that Zang & Whitmer actually maintained the type of trial practice portrayed in its advertisements. Because ninety-five percent of respondents’ cases were not filed, there could have been no discovery, no production of documents, none of the