When Ethics and Morals Collide
Oregon State Bar sanctions attorney for misconduct
It is difficult to imagine a better illustration of the distinction between ethics and morals than the disciplinary case against Corvallis lawyer Lara M. Gardner, who was reported to her licensor by the Marion County District Attorney.
The difference between the two apparently confuses many, but simply put, “morals” are our own internal sense of right and wrong, while “ethics” are rules of conduct that have been externally applied to us.
In this example, it is the Oregon State Bar that has applied the rules to Gardner, and the rule she broke was the one against dishonesty, fraud, deceit, or misrepresentation. The Marion DA’s complaint alleged that Gardner had fabricated two documents: an official order from the State of Oregon Board of Parole and Post-Prison Supervision, and a Marion County indictment.
Gardner admitted that she created the fraudulent documents. This would ordinarily be grounds for suspension, or even disbarment; yet Gardner received only a public reprimand, the least serious sanction that the Bar can dish out.
Making the situation even more curious, Gardner doesn’t think what she did was wrong — she simply chose her own morals over the Bar’s ethics.
The papers that Gardner created were given to two prisoners who had been charged with serious crimes, likely involving injury to children. Prisoners apparently carry their “papers” around to show others what they’re in jail for; and depending on what those papers say, a prisoner might receive a beating — or worse.
Gardner’s papers were intended (and used) only to help prisoners avoid such “jailhouse justice” while they served their sentences. The papers were not filed anywhere but these two prisoners’ pockets.
Gardner stated, “It is my perspective that a system where it is known that prisoners are routinely beat up and killed is an abusive one. The U.S. prison system has recognized human rights abuses, including those of the type I was seeking to prevent. It’s not a secret.”
She continued, “I did it because I genuinely believe that even if someone has done something awful, it doesn’t make it right to do something awful to them. If the system wants to punish people by beating them up or killing them, at least be honest about it.”
She’s right: Even people who have been convicted of or have admitted to repulsive crimes don’t deserve to be beaten to death in jail — especially given the rate of wrongful convictions in the U.S.
When the Marion DA discovered Gardner’s papers — while prosecuting her brother — they reported her to the Bar, calling the documents “misrepresentations.”
The ethics rule against dishonesty, fraud, deceit, or misrepresentation is perhaps the worst one to violate, as it usually results in severe sanctions. From 1958 to 2016, the Bar prosecuted 178 cases against Oregon attorneys who had violated this rule, and the overwhelming majority were either suspended (114) or disbarred (41).¹
Only thirteen of the 178 attorneys received a Reprimand; and of those thirteen, none had fabricated documents as Gardner had.
The Oregon Supreme Court has “long recognized the threat” that is posed by attorneys who “forge or fabricate documents,” and consistently disbars them. While those attorneys’ cases are investigated, the Bar usually moves quickly to temporarily suspend them. That immediate but temporary suspension “is the only remedy sufficient to protect the public.”
Yet the Bar did not move to suspend Gardner. Meaning that her case is not just rare, it is singular.
So what gives? Did the Bar discover a previously unknown morality clause in their normally inflexible ethics rules? Was this political?
It appears to be neither. Gardner told me, “I stipulated to the [Bar’s] discipline because they threatened me with their legal fees if they won at trial and they threatened me with appeal if I won. I couldn’t tolerate either proposition and it was an untenable position to be in.” In other words, she wanted to get past it with as little damage as possible — an entirely understandable move.
She added that the Bar “disproportionately target[s] small and solo practitioners,” not because they cause the most harm, “but because it is easier to prosecute” them, and because “they have fewer resources or available remedies than the bigger firms” when accused of misconduct. Gardner had such complaints often before her own Bar problems began, but “thought it was sour grapes.”
Gardner thinks differently now. “I know others who have been targeted by the bar who are from small and solo practices, and have also known lawyers who worked for bigger firms and got away with bad conduct. Sadly, it isn’t sour grapes.” She added, “This isn’t to say that the lawyers who are sanctioned are all innocent; it just means I take all of it with a giant bag of salt.”
A review of court records shows that despite reporting her to the Bar, the Marion District Attorney has not charged Gardner with any crime, such as first or second degree forgery. The crime of forgery requires the “intent to injure or defraud;” and while the documents that Gardner created were indeed intended to dupe, they were only intended to dupe bad people and preventing violence.
All of this means that as a licensed attorney, Gardner made a choice that went against the ethics rules governing her profession; but as an individual, she made a very understandable moral decision: to help protect a fellow human being.
¹ This number includes those who were disbarred or effectively disbarred through their Form B Resignations, i.e. resignations made while under disciplinary investigation.
Neither the Marion DA nor the Bar responded to my requests for additional information.