March 31, 2016 Articles

Crafting Cease-and-Desist Letters Without Violating the ABA Model Rules

Cautionary tales for attorneys.

By Joshua A. Kurtzman

The cease-and-desist letter is often born out of an anxious call from a client. For instance, a client may relay that a critical employee decided to resign and join its primary competitor. To make the situation worse, the former employee also retained the client’s trade secrets and confidential information in electronic form (USB flash drive, cloud-based repository, laptop, or tablet). The client directs you to draft a letter to the former employee demanding the return of the trade secrets or confidential information and threatening civil and criminal action if the employee fails to do so. How should you approach this task?

When sitting down to draft this cease-and-desist letter, an attorney should contemplate the ethical issues inherent in threatening civil and criminal action. Namely, does an attorney violate applicable ethical rules by threatening criminal charges in this context? Unfortunately, the answer to this question is “it depends.” An attorney can satisfy the client’s request, while avoiding claims of ethical misconduct, by understanding the critical factors of this analysis and consulting his or her jurisdiction’s ethical rules.

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