Readers have pointed out to me that the infamous phrase moral turpitude has crawled out from under a rock into the glare of the spotlight, thanks to Charlie Sheen.
In this March 7 letter to Sheen’s lawyer, Warner Bros. Television’s outside counsel, Munger, Tolles & Olson, stated that Warner Bros. Television’s termination of Sheen’s contract was based in part on the following provision:
If Producer in its reasonable but good faith opinion believes Performer has committed an act which constitutes a felony offense involving moral turpitude under federal, state or local laws, or is indicted or convicted of any such offense, Producer shall have the right to delete the billing provided for in this Agreement from any broadcast or other uses which are thereafter made of the episode(s) in which Performer appears. In addition, to the extent such event interferes with Performer’s ability to fully and completely render all material services required hereunder or Producer’s ability to fully exploit the Series, Producer shall have the right to treat such act as a default under the applicable provisions hereof.
MSCD 12.176–195 contains a comprehensive discussion of the phrase; it’s also discussed in this December 2007 AdamsDrafting blog post. The main point is that besides sounding pompous, the phrase moral turpitude is so unhelpfully vague that you’re asking for trouble if you include it in a contract.
But here’s what comes to mind regarding this provision:
- The part of the provision that is keyed to commission of the act, rather than indictment or conviction, is problematic. How do you know, in advance of any proceedings, whether someone has committed an act that constitutes a felony?
- Presumably that’s why the provision refers to Warner Bros. Television’s “reasonable but good faith opinion.” I don’t know that that gets around the problem with tagging an act as a felony in advance of any proceedings. But it’s better than nothing.
- The notion of “reasonable but good faith” is rather odd. It suggests that reasonableness is potentially at odds with good faith.
- The second half of the first sentence is less problematic than the first half, in that it refers to indictment or conviction, but you’re still left wondering what level of depravity is required for moral turpitude.
- The third sentence is clearer, as it focuses on the practical consequences of a given act rather than its legal status.
But regardless of any shortcomings in the provision, anyone invoking a moral turpitude provision against Charlie Sheen certainly has plenty of material to work with!