I’ve had in the can for a few weeks a partly completed blog post on the subject of the phrase moral turpitude. This phrase features in various kinds of agreements providing for an ongoing relationship, but I associate it with employment agreements in particular.
The post remains unfinished because although I’ve identified the problem with the phrase, I’d like some input from people who encounter the phrase regularly.
So here’s what I have in mind: If you can recommend language that one should use instead of language referring to moral turpitude, I invite you to post a comment. It should address, without using the words moral turpitude, whatever concerns a drafter might be taking a vague stab at by using the words moral turpitude.
And here’s the competition element: Whoever submits the most insightful or innovative comment will receive a lovingly inscribed copy of A Manual of Style for Contract Drafting. (Of course, if none of the comments are pulse-poundingly exciting, I reserve the right to not award this wonderful prize.)
I suggest you craft your comment as text that could, with limited revisions, simply be tacked on to my blog post. Once others post their comments, that might be unwieldy; in that case, it might be best simply to build on the analysis that has gone before. I’ll close the competition one week after posting.
Be as straight-faced or offbeat as the urge takes you. Feel free to remain anonymous for purposes of your comment, but do give readers some idea of the capacity in which you’ve encountered the phrase. And do consider the general context of provisions using the phrase moral turpitude. Also, you’ll receive a warmer reception from yours truly if you make an effort to draft in the Adams manner—no archaisms, redundancies, weird verb use, and so on.
Why a competition? Because inquiries with a couple of employment-law blogs elicited no response. (The blogs in question obviously haven’t bought into Kevin O’Keefe’s mantra that to goose traffic to your blog you should air your views on other blogs.)
So come one, come all! And pass the word on to that special employment lawyer in your life!
Without further ado, here’s my partial blog post:
In September the WSJ Law Blog recently posted this item dealing with a Ninth Circuit case, Marmolejo-Campos v. Gonzales, that hinged on the meaning of the phrase moral turpitude. Eric Goldman sensibly suggested that I might want to look into it, hence this post.
Black’s Law Dictionary defines moral turpitude as meaning “Conduct that is contrary to justice, honesty, or morality.” It also quotes 50 Am. Jur. 2d Libel and Slander § 165, at 454 (1995):
Moral turpitude means, in general, shameful wickedness—so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.
For all its heavy-breathing pomposity, this definition is no more enlightening than the more succinct Black’s definition. There’s no getting around the fact that the phrase moral turpitude is utterly vague.
That explains how in the Marmolejo-Campos case the Ninth Circuit came to conclude that driving drunk isn’t an act of moral turpitude, but driving drunk without a license is. It also explains the lengthy dissenting opinion.
Despite its vagueness, the phrase moral turpitude is a fixture in employment agreements, consulting agreements, and employee benefit plans, where it routinely features as one of the grounds for termination for cause:
the Executive’s admission or conviction of, or plea of nolo contendere to, a felony or of any crime involving moral turpitude, fraud, embezzlement, theft or misrepresentation; …
It also appears in other kinds of agreements. For example, in a loan agreement the lender might require the borrower to represent that no person associated with the borrower has been convicted of any crime involving moral turpitude.
The Ninth Circuit’s adventures in determining what moral turpitude is got me to thinking that one ought to be able to come up with a clearer alternative. So I solicited input from others.
[To be completed]
An act of “Moral Turpitude” means an act which either (1)involves an element of deceipt, fraud, or dishonesy, (2) would shock or offend the community at large, or (3) a crime for which the person is indicted and either convicted or the charges are not dismissed within one hundred eighty (180) days after the issuance thereof.
Nice idea Ken. Had a client ask me about a similar idea of their’s to get their readers to partcipate with you in blogging. Let’s see how this goes for you – would be something I should blog about – and may just do.
“Moral turpitude” is something you’d be ashamed to tell your mother you did.
Ken, from the buy-side, I think that often a termination for convenience clause is better than a moral turpitude clause as part of a termination for breach. Naturally, this raises the problems of the interaction between TforConvenience and good faith obligations that we discussed before. Another buy-side alternative is to get a termination right for “objectionable” behavior without defining objectionable or defining it using the buyer’s subjective standards (again measured by the good faith obligation). Eric.
I have long wanted to share this story.
25 years ago, a woman brought her prospective husband to my office. He had been rejected by the Canadian immigration authorities for a conviction on a “crime of moral turpitude” committed in L.A.
I asked him about that. He said, “Oh, that was nothin’. Me and some guys stole a bag of donuts off a little old lady.”
“Term for convenience” clauses often include a 30 day written notice. In cases where an employee or contractor is convicted of a crime of vile depravity (Webster’s II definition of turpitude) you might prefer having a moral turpitude clause that allows for a swifter response.
Why involve morality at all in law? (Unless, of course, you think that “immoral” means “it’s against the law” and “illegal” means “a sick bird”. ) The use of slippery and shifting concepts like moral turpitude suggests that we need some sort of outlet for our outrage; that decisions made on the basis of legality are apparently insufficient to satisfy our lust for justice. Instead, why don’t we accept that the broad spectrum of legal human behaviours includes the not-very-nice and leave discussions of morality to watercoolers and blogs.
“any crime which, if publically known would decrease the respect, regard, or confidence in which Employee is held in the community, or which, in Employer’s estimation, decreases Employer’s good will in the Employer’s marketplace.”