It could be argued that the hearing (it’s not a trial) that serves as the dramatic climax to “Miracle on 34th Street” is the most memorable courtroom scene in movie history. That tells us something, though I’m not sure what. A more legally and ethically absurd spectacle would be difficult to imagine.

When we last saw Kris Kringle—if that indeed is his name—he was preparing to go to a hearing in which his sanity would be determined by a judge. (Insert Marx Brothers “Sanity Clause” joke here.) Lawyer Fred Gailey actually quits his law firm to take on the case, which he is handling pro bono. The hearing will he presided over by a judge played by Gene Lockhart, who has impeccable Christmas movie credentials, having played Bob Cratchit in one of the adaptations of “A Christmas Carol.”

The logical, legal and ethical aspects of the story go off the rails quickly, never to return. Mr. Macy orders Sawyer to have the case dropped, which makes no sense: if Sawyer were suing Kris for assault and battery, of if Macy’s had pressed criminal charges, Macy would have some say. But this is the state of New York saying that Kris is a threat to himself and others because he’s deluded. It’s a state matter now.

Sawyer goes to Fred and tries to get him to drop the case, saying “I represent Mr. Macy.” What, he’s a lawyer now? Not only does Macy have no role in this matter, Fred’s defending Kris, not prosecuting the case.

When Sawyer mentions that Macy’s wants to avoid publicity, Fred sees a little light bulb go on in his skull. “Very interesting,” he says out loud. “Publicity. Hmm. That’s not a bad idea! If I’m going to win this case… I’ll have to have plenty of public opinion!” Except that’s unethical. From New York’s Code of Professional Conduct, which wasn’t in force when the film was made but the principles were:

DR 7-107 [1200.38] Trial Publicity.
A. A lawyer participating in or associated with a criminal or civil matter, or associated in a law firm or government agency with a lawyer participating in or associated with a criminal or civil matter, shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter….

Saying that one’s client will need publicity to influence public opinion is a clear statement of intent to violate the spirit if not the letter of the ethics rules. Fred breaches the rules again when he goes to see the judge to persuade him not to sign Kris’s commitment papers. In an adversary proceeding, a lawyer must not meet with a judge without opposing counsel present; that an ex parte communication, and strictly forbidden. Of course, it’s also unethical for the judge to let him do it.

That’s not all in the realm of judicial ethics. After suggesting that the fact that Kris says he’s Santa Claus makes his insanity a forgone conclusion, Judge Harper, who is apparently an elected judge (a situation I regard as a “pre-unethical condition”) is visited by his campaign manager, Charlie, an old pol played by none other than William Frawley, now immortal for co-starring in “I Love Lucy” as Fred Mertz. He suggest that Harper withdraw from the case:

“This Kringle case is dynamite. Let some judge handle it that isn’t coming up for reelection..I’m no legal brain trust. I don’t know a habeas from a corpus. But I do know politics. That’s my racket. I got you elected, didn’t I? And I’m gonna try to get you reelected….You’re a Pontius Pilate the minute you start!”

Then the judge’s grandchildren make a convenient entrance, and snub him because he’s being mean to Santa. Later, when the hearing somehow is turned into a referendum on whether Santa is real, Charlie returns with a dire warning:

Continue reading →