| A Cease and Desist Order... | A Cease and Desist Letter... |
|---|---|
| …is issued by a government agency or a court. | ...can be written by anyone, typically an attorney. |
| …requires the recipient to stop an activity. | ...asks the recipient to stop an activity. |
| ...requires the recipient to respond to an agency or court. | ...requests a response from the recipient. |
| …prohibits the recipient from continuing the activity. | ...does not prohibit the activity, but may subject the recipient to further legal action. |
Cease and Desist Letter
A cease and desist letter is not legally binding and reflects the opinion of an individual, typically an attorney. A cease and desist letter may serve to warn an offender that legal action may take place if they don’t stop a certain activity. The offender is generally given a set time frame—usually 10 to 15 days—to cease and desist.
A cease and desist letter must comply with laws in the jurisdiction in which it is sent. In addition, the American Bar Association (ABA) Model Rules of Professional Conduct dictate that a lawyer “shall not present, participate in presenting, or threaten to present a criminal charge solely to obtain an advantage in a civil matter.” Such a threat has no legal significance other than being a negotiation tactic.
Cease and desist letters often require a signature upon delivery. The letter is typically sent with a return receipt requested, although this is not required.
Legal Considerations for a Cease and Desist Letter
A lawyer is bound by the ABA Model Rules of Professional Conduct. These rules prevent attorneys from presenting—or participating in—threats of criminal charges in order to gain an advantage in a civil case.
Three preconditions usually must be met before an attorney may raise the prospect of charges without violating the professional conduct code.
- The charges must be related to the civil matter at hand. Citing a criminal charge that is unrelated to the civil claim in order to get an upper hand in the civil case is a deceptive tactic that is frowned upon by the legal system. An attorney who breaches trust by maliciously misrepresenting a case or making a false claim would be engaging in misconduct.
- The attorney must believe the civil claim and associated criminal charges are based on merit in relation to the law. A claim that is unfounded and without merit can expose the attorney to an allegation of embarrassment by the person who received the cease and desist letter. The attorney may be found to have filed a frivolous claim in violation of the ABA Model Rules of Professional Conduct.
- An attorney must not attempt to exert or improperly influence the criminal process. An attorney who tries to influence the legal outcome following a cease and desist letter through illegitimate means such as bias, duress, or fraud may be found to have tampered with the legal system. For example, an attorney may not tell a recipient that criminal charges can be avoided if the recipient meets the client’s demands as spelled out in the letter. In legal terms, this could imply that the attorney has some authority over court proceedings, a violation of the ABA Model Rules of Professional Conduct.
Anyone can send a cease and desist letter. An attorney does not have to be involved. However, an attorney can advise complainants on whether their rights have been violated and if they have legal and meritorious rights to send a cease and desist letter.
A restraining order is a type of cease and desist order that may be issued to a person accused of stalking or intimidation.
Cease and Desist Examples
There are four unlawful activities that are most often addressed with cease and desist orders or letters: misuse of intellectual property, harassment, character defamation and libel, and contract violations, including unfair labor practices or unfair compensation.
Remember that, while anyone can write a cease and desist letter, a cease and desist order must be issued by a court or other entity with the legal right to do so.
If you are served with a cease and desist document, examine it carefully—consulting legal advice, if necessary—to determine who sent it and what legal status and validity it has.
Intellectual Property
Someone who duplicates work that is under trademark, copyright, or patent without permission is likely to receive a cease and desist letter or order.
For example, a website publisher who plagiarizes content or images from another website without arranging for rights to republish the content risks copyright infringement charges and may be served with a cease and desist.
If an accusation gets to court, the cease and desist letter serves as proof that the recipient was aware of the alleged misconduct.
Harassment
A person who repeatedly pesters or threatens another person can be sent a cease and desist letter as a warning.
For example, according to the Fair Debt Collections Practices Act (FDCAPA), third-party debt collectors cannot harass, oppress, or abuse anyone in an effort to collect a debt that is owed.
A debt collector who consistently and frequently calls a debtor may be sent a cease and desist letter. In more egregious cases, a cease and desist order may be sought and issued.
A restraining order is a special type of cease and desist order used in cases of stalking or intimidation. The definition and rules regarding stalking vary by state.
Character Defamation and Libel
It is illegal to make untruthful comments about another person that could be harmful to their reputation and business, whether in print or verbally. An individual who engages in such behavior should not be surprised to receive a cease and desist letter.
For example, an individual who spreads a false rumor that a fast-food chain’s burgers are mostly made of ground-up bugs may be issued a cease and desist letter—or even a cease and desist order—since their lies may damage the business.
Contract Violations
A party violating the terms of a contract may be issued a cease and desist letter or order. In the hedge fund sector, for example, employees are usually required to sign a non-compete agreement. This means that if employees leave the company, they cannot take proprietary materials or clients of the hedge fund with them. This may change in 2024, however.
On May 7, 2024, the Federal Trade Commission will publish a final rule in the Federal Register that broadly bans non-compete agreements in employment contracts. It is slated to take effect in September 2024, at which point most non-compete agreements (with few exceptions) will no longer be legally enforceable. However, the rule is also expected to face legal challenges.
Can Anyone Send a Cease and Desist Letter?
Yes. You don’t need a lawyer to prepare a cease and desist letter, although a lawyer will know how to write a letter that is firm without crossing ethical lines.
That being said, individuals can find templates online with ready-written cease and desist letters for all occasions, including demands that the recipient stop unauthorized use of copyrighted work, violations of a contract agreement, defamation, and harassment.
Remember, a cease and desist letter is not legally binding like a cease and desist order from a court or government agency. Its purpose is to alert the recipient that you are aware of an alleged violation and may be prepared to take legal action to protect your rights.
How Effective Are Cease and Desist Letters?
Cease and desist letters can be quite effective. Businesses and individuals often choose to adhere to them to protect themselves against further legal action.
At the same time, there are people who may choose to ignore cease and desist notices except for those issued by a court or a government agency. This is often based on an assessment that it would be too costly or time-consuming for the sender to actually pursue legal action, or that the cease and desist notice is frivolous.
What Happens If a Cease and Desist Letter Is Ignored?
If a cease and desist letter is ignored, the sender may choose to file a lawsuit against the recipient. In court, the cease and desist letter may serve as evidence that the defendant had been warned about alleged violations and had ignored the warning.
The Bottom Line
A cease and desist is a written notice that alerts its recipient of an alleged violation of the rights of the sender. Courts and government agencies can issue cease and desist orders, which are legally binding injunctions. Individuals and companies can send cease and desist letters, but these are not legally binding. Nonetheless, they can be a first step toward further legal action.
