Opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AEROTEK AFFILIATED §

SERVICES, INC. §

§

Plaintiff, §

§

v. § Civil Action No. 3:25-CV-1455-L

§

SCOTT GILMORE THOMPSON PLLC; §

MATT SCOTT; and JAMIE GILMORE, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiff’s Original

Complaint (“Motion” or “Motion to Dismiss”) (Doc. 16), filed July 25, 2025. For the reasons

herein explained, the court grants the Motion to Dismiss.

I. Factual and Procedural Background

Staffing company Aerotek Affiliated Services, Inc. (“Plaintiff” or “Aerotek”) brought this

action on June 6, 2025, against Scott Gilmore Thompson PLLC, Matt Scott, and Jamie Gilmore

(“Defendants”), alleging that Defendants tortiously interfered with its employment contracts with

Michael Marshall and Lerone Boyd. Specifically, Plaintiff alleges that Defendants, who provided

legal representation to Mr. Marshall and Mr. Boyd in prior separate arbitrations against their

employer Aerotek, interfered with and caused Mr. Marshall and Mr. Boyd to breach the

confidentiality provisions in their respective employment contracts that provided as follows for

confidential arbitration of employment disputes:

Confidentiality

The parties shall maintain the confidential nature of the arbitration proceeding and

the award, including all disclosures in discovery, submissions to the arbitrator, the

hearing, and the contents of the arbitrator’s award, except as may be necessary in

connection with a court application for a provisional remedy under applicable law,

a judicial action to vacate or enforce an award, or unless otherwise required by law

or allowed by prior written consent of both parties. This provision shall not prevent

either party from communicating with witnesses to the extent necessary to assist in

arbitrating the proceeding. In all proceedings to confirm or vacate an award, the

parties will cooperate in preserving the confidentiality of the arbitration proceeding

and the award to the greatest extent allowed by applicable law.

Doc. 2-1 at 3.

Aerotek contends that Defendants willfully and intentionally interfered with the

confidentiality provision in Mr. Marshall’s contract by sending the arbitrator in the Boyd

Arbitration a letter disclosing the contents of the Marshall Arbitrator’s confidential Interim Award

and enclosing a copy of the confidential Interim Award. Aerotek’s claim for the alleged

interference with Mr. Marshall’s contract is set forth in Count I of Plaintiff’s Complaint. Aerotek

alleges that Defendants similarly interfered with the confidentiality provision in Mr. Boyd’s

contract by providing the Marshall Arbitrator a copy of the Boyd Arbitrator’s proposed Interim

Reasoned Award. Aerotek’s claim for the alleged interference with Mr. Boyd’s contract is set forth

in Count II of Plaintiff’s Complaint.

Aerotek further alleges that such conduct by Defendants was a “substantial factor” in

bringing about: (1) its diminished recovery on its counterclaim in the Boyd Arbitration for Mr.

Boyd’s breach of the arbitration agreement (failure to arbitrate) and the resulting attorney’s fees

and costs that it incurred in moving to compel arbitration in state court; and (2) the monetary award

against it on Mr. Marshall’s hostile work environment claim in the Marshall Arbitration. In other

words, Aerotek contends that its award of attorney’s fees and costs in the Boyd Arbitration would

have been higher, and Mr. Marshall’s damage award in his arbitration against Aerotek would have

been lower if Defendants, while acting as counsel for Mr. Boyd and Mr. Marshall, had not shared

confidential arbitration award information with the arbitrators in both proceedings in violation of

the confidentiality arbitration provision in Mr. Boyd’s and Mr. Marshall’s employment contracts.1

With respect to its claim for tortious interference with Mr. Marshall’s contract (Count I),

Aerotek alleges that, “as reflected in the Boyd Arbitrator’s Final Award dated September 11,

2023,” it incurred “compensatory damages” in the amount of $388,400 as a result of Defendants’

interference with the confidentiality provision in Mr. Marshall’s contract. Doc. 1 at 15. The court

notes that this amount appears to correspond to the amount of attorney’s fees and costs that Aerotek

sought in the Boyd Arbitration in connection with its counterclaim. Aerotek also seeks an

additional $123,320 in attorney’s fees and costs as “consequential damages” that it incurred in “a

continuing effort to mitigate its damages by vacating the Boyd Arbitrator’s award on [it]s

counterclaim.” Id.

With respect to its claim for tortious interference with Mr. Boyd’s contract (Count II),

Aerotek alleges that, “as reflected in the Marshall Arbitrator’s Final Award dated July 10, 2023,”

it incurred “compensatory damages” in the amount of $530,930.92 as a result of Defendants’

interference with the confidentiality provision in Mr. Boyd’s contract. Doc. 1 at 17. This amount

appears to correspond to the amount of damages awarded to Mr. Marshall on his hostile work

environment claim in his arbitration against Aerotek. Aerotek also seeks an additional $155,264

in attorney’s fees and costs as “consequential damages” that it incurred in “a continuing effort to

mitigate its damages by vacating the Marshall Arbitrator’s monetary award against [it] on Mr.

1 In both arbitrations, Aerotek sought approximately $400,000 in attorney’s fees and costs in connection with its

counterclaims for breach of the arbitration agreements (failure to arbitrate) and the resulting attorney’s fees and costs

that it incurred in moving to compel arbitration in state court. Aerotek, however, was only awarded approximately

$10,000 in nomimal damages in each arbitration to compensate it for the attorney’s fees and costs it incurred. In both

arbitrations, the arbitrators noted a lack of evidence supporting Aerotek’s requests for attorney’s fees and costs under

Maryland law. In the Boyd Arbitration, after offsets, Mr. Boyd was awarded $10,000 on his hostile work environment

claim, $96,037.55 in attorney’s fees, $1080.36 in costs, as well as $225,000 in contingent appellate attorney’s fees in

the event further proceedings are necessary to enforce the arbitration award. See Doc. 2-10 at 12. In the Marshall

Arbitration, after offsets, Mr. Marshall was awarded $200,000 in on his hostile work environment claim, $175,058.36

in attorney’s fees, $1,080.32 for costs, $84,850.02 in prejudgment interest, and an additional $95,000 if appeals or a

motion to enforce or vacate the arbitration award are filed. See Doc. 2-12 at 20.

Marshall’s hostile work environment claim,” which included an award of damages, attorney’s fees,

prejudgment interest, and contingent attorney’s fees and costs. Id. In addition, Aerotek is seeking

punitive damages against Defendants in connection with Counts I and II pursuant to Texas Civil

Practice & Remedies Code § 41.003, prejudgment and postjudgment interest, and costs of court.

According to Aerotek’s Complaint, the damages it seeks to recover in this action represent

the amounts it lost in Mr. Boyd’s and Mr. Marshall’s arbitrations, as well as the attorney’s fees

and costs that it has incurred since the conclusion of the arbitrations in seeking to vacate the

arbitration awards or opposing Mr. Boyd’s and Mr. Marshall’s efforts to confirm the arbitration

awards. Aerotek notes that Mr. Boyd and Mr. Marshall both moved in state court to confirm their

respective arbitration awards, and it moved to vacate the awards. After both arbitration awards

were confirmed, Aerotek appealed.

On December 12, 2025, the court of appeals affirmed the Final Awards in both arbitrations.

See Aerotek Affiliated Servs., Inc. v. Boyd, No. 05-24-00361-CV, 2025 WL 3619322, at *2-4 (Tex.

App.—Dallas, 2025); Aerotek Affiliated Servs., Inc. v. Marshall, 2025 WL 3619321, at *6-7 (Tex.

App.—Dallas, 2025). In both cases, the court of appeals applied essentially the same reasoning in

concluding that counsel’s disclosure of the Interim Awards in the Boyd and Marshall Arbitrations

did not constitute the type of “fraud or corruption” necessary to establish that the arbitrators’

awards were procured by undue means or fraud under the Federal Arbitration Act, 9 § U.S.C.

10(a)(1). See id. (“Aerotek has not shown that the disclosure violated any judicial or arbitral rules,

and even if the lawyer violated a private confidentiality agreement, we conclude that his conduct

amounted to nothing more than arguably overzealous lawyering.”) (citing UBS Fin. Servs., Inc. of

P.R. v. Efron, No. 23-13879, 2025 WL 1833578, at *9 (11th Cir. July 3, 2025) (per curiam)

(holding that party did not use “undue means” when it informed arbitrators about prior arbitration

award that had later been vacated); American Postal Workers Union v. United States Postal Serv.,

52 F.3d 359, 362, 361-63 (D.C. Cir. 1995) (introducing claimant’s arrest record during arbitration

was not undue means even if using the arrest record violated Connecticut law); and Trademark

Remodeling, Inc. v. Rhines, No. PWG-11-1733, 2012 WL 3239916, at *3 (D. Md. Aug. 6, 2012)

(observing that no court has ever suggested that “undue means” reaches lawyer’s acts that are

merely legally objectionable, such as presenting confidential information)). In addition, the court

of appeals concluded that Aerotek had failed to show a nexus between the alleged fraud or

impropriety and the basis for the arbitrator’s decision in the Marshall Arbitration. Marshall, 2025

WL 3619321, at *7.

Before the state appeals were resolved, Defendants moved to dismiss Plaintiff’s tortious

interference with contract claims in this action on two grounds, arguing that: (1) attorney immunity

and the judicial proceedings privilege entitle them to total immunity from suit; and, alternatively,

(2) the claims are barred by applicable statute of limitations.

II. Rule 12(b)(6) Legal Standard

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.

Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,

180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal citations omitted). While a complaint need not contain detailed factual

allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The

“[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative

level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading

do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of

showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas

Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.

1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.

Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any

documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.

2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered

part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the

plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,

431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a

plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court

in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)

(citation omitted). Further, it is well-established and ‘“clearly proper in deciding a 12(b)(6) motion

[that a court may] take judicial notice of matters of public record.”’ Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.

2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)).

The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid

claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.

Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a

complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”

Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences

favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or

legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted).

The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines

whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St.

Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way:

A motion to dismiss for failure to state a claim concerns the formal

sufficiency of the statement of the claim for relief, not a lawsuit's merits. So when

reviewing such a motion, we assume that the facts the complaint alleges are true

and view those facts in the light most favorable to the plaintiff. The complaint

survives if it contains sufficient factual matter ... to state a claim to relief that is

plausible on its face.

Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 582 (5th Cir. 2020) (citations and quotation marks

omitted). Accordingly, the denial of a 12(b)(6) motion has no bearing as to whether a plaintiff

ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)

challenge.

The grounds for dismissal raised by Defendants are affirmative defenses. “[W]hen a

successful affirmative defense appears on the face of the pleadings, dismissal under Rule 12(b)(6)

may be appropriate.” Kansa Reinsurance Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366

(5th Cir. 1994) (citation omitted); Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (“A

statute of limitations may support dismissal under Rule 12(b)(6) whe[n] it is evident from a

plaintiff’s pleadings that the action is [time-]barred and the pleadings fail to set forth or raise some

basis for tolling.”) (citations omitted).

III. Discussion

A. Statute of Limitations

In Texas, the statute of limitations for a claim for tortious interference with a contract is

two years. Cosgrove v. Cade, 468 S.W.3d 32, 35 (Tex. 2015) (citing Tex. Civ. Prac. & Rem. Code

Ann. § 16.003(a)). “The statute of limitations begins to run when a claim accrues,” and “[a] cause

of action accrues when facts come into existence that permit a plaintiff to recover.” Agar Corp.,

Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 144 (Tex. 2019) (citations omitted); Exxon

Mobil Corp. v. Rincones, 520 S.W.3d at 572, 591 (Tex. 2017) (“We have consistently stated that

‘a cause of action generally accrues at the time when facts come into existence which authorize a

claimant to seek a judicial remedy’ and the ‘fact that damage may continue to occur for an extended

period after denial does not prevent limitations from starting to run.’”) (citation omitted).

Applying this precedent, the Texas Supreme Court in Rincones held that “a claim for

tortious interference with a contract accrues at the time a contracting party knows the nature of the

injury and the damages[.]” 520 S.W.3d at 591 (citation omitted). Applying a “when-facts-come-

into-existence rule,” the court in Rincones concluded that the plaintiff was not only aware of the

defendant’s alleged tortious interference, but he was also aware of the negative effects of such

conduct:

Facts came into existence authorizing Rincones to seek a judicial remedy

on April 14, 2008, the day he was informed of his failed drug test and inactive

status. On that day, he knew of the negative effects his inactive status would have

on his job: he would no longer receive income or assignments from WHM [Custom

Services, Inc.] unless he followed procedures to regain active status. Rincones’s

tortious-interference claim is barred because he did not bring it until more than two

years after the accrual date, April 14, 2008. TEX. CIV. PRAC. & REM. CODE §

16.003(a). Even if he may have continued to suffer damages after that date, his

claim is time-barred as a matter of law.

Rincones, 520 S.W.3d at 592 (emphasis added).

Here, Defendants contend that Plaintiff’s claims for tortious interference with a contract

are barred because Aerotek alleges that they interfered with Mr. Marshall’s and Mr. Boyd’s

contracts on April 28, 2023, and May 25, 2023—the dates that Defendants provided the Boyd and

Marshall Arbitrators with the confidential Interim Award information—but Aerotek did not file

this action until June 6, 2025, more than two years after the dates it became aware of the alleged

interference.

Plaintiff disagrees and contends that it did not sustain “actual damage” until after the Final

Awards were entered in the arbitrations on July 10, 2023, and September 11, 2023. Plaintiff further

asserts that the Interim Awards that issued on May 25, 2023, and June 6, 2023, were subject to

change and incapable of being enforced.

The first Interim Award in the Boyd Arbitration issued on April 11, 2023. This first Interim

Award merely stated that both parties had prevailed on their respective claims without stating any

amounts that would be awarded. The second Interim Award that issued on June 6, 2023, however,

included the damage awards for both Mr. Boyd and Aerotek, and stated that all that remained for

consideration was the amount of attorney’s fees and costs to be awarded to Mr. Boyd as the

prevailing party in the arbitration. Thus, this is the first time that Aerotek could have known of

the allegedly negative effects of Defendants’ interference. As suit was brought by Aerotek on June

6, 2025, with respect to Defendant’s alleged interference with Mr. Marshall’s contract as it pertains

to the Boyd Arbitration, its claim in this regard (Count I) was filed within the applicable two-year-

limitations period and is not time-barred. Accordingly, Defendants are not entitled to dismissal of

Count I on this ground.

The Interim Award in the Marshall Arbitration issued on May 25, 2023. This Interim

Award stated that Mr. Marshall was entitled to recover damages of $210,000 or $200,000 after an

offset of $10,000 for the attorney’s fees awarded to Aerotek as contract damages. The Interim

Award made clear that it “resolve[d] all issues submitted for determination in this arbitration

proceeding, except [Mr.] Marshall’s attorneys’ fees[.]” Doc. 2-6 at 17. The Final Award in the

Marshall Arbitration did not change or increase the amount of damages awarded to Mr. Marshall,

which is the basis for Plaintiff’s Count II, but even if it had, Aerotek first became aware of the

allegedly negative effects of Defendants’ interference (the damages awarded to Mr. Marshall) on

May 25, 2023. As Plaintiff did not file this action and assert Count II until June 6, 2025, more

than two years after this date, its claim for Defendants’ allegedly tortious interference with Mr.

Boyd’s contract (Count II) is time-barred and will be dismissed with prejudice.

B. Attorney Immunity

Defendants contend that Plaintiff’s claims for tortious interference with Mr. Marshall’s and

Mr. Boyd’s contracts are also barred by attorney immunity under Texas law because their

arbitration filings and communications with the arbitrators that form the basis for Plaintiff’s

claims: (1) “[were] made within the scope of arbitration and (2) constituted legal advocacy that

lawyers normally engage in as a part of their zealous representation—. . . [to] encourage the

arbitrators to find in favor of their clients on liability and damages.” Doc. 16 at 8. According to

Defendants their alleged “tortious interference” is inseparable from their zealous advocacy that

they provided on behalf of their clients in the arbitration proceedings. Defendants, therefore, argue

that they are fully immunized because their sharing the interim awards with the arbitrators “for the

sole purpose of promoting the arguments and credibility of their clients” is precisely “the kind of

conduct in which an attorney engages when discharging his duties to his client.” Id. (quoting

Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 348 (5th Cir. 2016).

Plaintiff counters in pertinent part as follows:

Defendants must be arguing that the act of causing Client A to breach Client

A’s arbitration agreement fell within the scope of their representation of Client B,

in Client B’s arbitration proceeding and for Client B’s benefit. However, such

disregard of Client A’s contractual obligations and best interest is foreign to the

duties of an attorney.

In Moore v. Anson Fin., Inc., No. 02-19-00201-CV, 2020 WL 1293695

(Tex. App.—Fort Worth April 20, 2020), the court referred to the Texas

Disciplinary Rules of Professional Conduct when determining whether certain

conduct was the kind of thing an attorney would do in representing a client. Id. at

*4 (finding that “conferring with a client before taking on additional representations

. . . serves the lawyer’s duty to communicate with the client [under Tex.

Disciplinary Rules Prof’l Conduct 1.03].”). These rules prohibit an attorney from

revealing a client’s confidential information, using such information to the client’s

disadvantage without consent, and representing a client whose interest is materially

adverse to that of another client. Tex. Disciplinary Rules Prof’l Conduct 1.05(b),

1.06. The point is not that the rules suggest Defendants’ conduct was “wrongful,”

but only that it could not have been among the “duties of an attorney” when the

rules create contrary duties.

“[T]he public interest is served by the enforcement of valid contracts.”

HealthTrackRX v. Samaha, No. 24-CV-1100-SDJ, 2020 WL 1293695, *7 (E.D.

Tex. July 25, 2025). That interest must be weighed against an advocate’s right to a

degree of immunity. There can be no serious contention that “zealous advocacy”

on behalf of Client B allows an attorney to violate Client A’s contractual obligation

to maintain the confidentiality of an arbitration proceeding, a settlement, or

something else Client A agreed to keep confidential. Indeed, if an attorney

representing Client B could benefit Client B by disclosing the confidential

information of Client A, and was immune from liability for doing so, the attorney

would not only be allowed to breach the confidential information of Client A—but

would be required to. In that world, lawyers could not be sued (even by Client A)

for violating Client A’s confidentiality obligations, but could be sued by Client B

if the lawyer failed to violate another client’s (Client A’s) confidentiality

obligations.

Doc. 19 at 7 (footnote omitted). According to Plaintiff, the “perverse result advocated by

Defendants would effectively vitiate confidentiality agreements in the State of Texas,” but

“[f]ortunately, it is not required by the case law and does not support Defendants’ Motion.” Id.

For the reasons that follow, the court disagrees with Plaintiff’s unsupported

characterization of Texas law with respect to the application of attorney immunity to the facts of

this case as alleged in Plaintiff’s Complaint. In Ironshore Europe DAC v. Schiff Hardin, LLP, 912

F.3d 759 (5th Cir. 2019), the Fifth Circuit summarized the Texas Supreme Court’s holdings

regarding the scope and applications of the attorney privilege in Cantey Hanger, LLP v. Byrd, 467

S.W.3d 477 (Tex. 2015), and Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018), as follows:

In Cantey Hanger, the court described this doctrine as “intended to ensure

‘loyal, faithful, and aggressive representation by attorneys employed as advocates’”

by avoiding “the inevitable conflict that would arise if [they] were ‘forced

constantly to balance [their] own potential exposure against [their] client’s best

interest.’”

The Cantey Hanger court made it clear that attorneys are generally

“immune from civil liability to non-clients ‘for actions taken in connection with

representing a client in litigation.’” Attorney immunity does not extend to actions

that “do not qualify as ‘the kind of conduct in which an attorney engages when

discharging his duties to his client’” or that “are entirely foreign to the duties of an

attorney” because they do “not involve the provision of legal services and would

thus fall outside the scope of client representation.” However, this immunity

extends to even wrongful conduct that is “part of the discharge of the lawyer’s

duties in representing his or her client.” The Cantey Hanger court declined to find

a general fraud exception to the doctrine of immunity, reasoning that “the focus in

evaluating attorney liability to a nonclient is ‘on the kind—not the nature—of the

attorney’s conduct,’” so “[m]erely labeling an attorney’s conduct ‘fraudulent’ does

not and should not remove it from the scope of client representation or render it

‘foreign to the duties of an attorney.’”

In Cantey Hanger, the plaintiffs alleged that an attorney made intentional

misrepresentations in the “preparation of a bill of sale [transferring] an airplane

awarded to [the firm’s] client in an agreed divorce decree,” for the purpose of

shifting tax liability between the parties to the divorce in violation of the decree.

The court reasoned that the preparation of the bill of sale to facilitate the transfer of

the airplane pursuant to the decree “‘was conduct in which an attorney engages to

discharge his duties to his client’ and was not ‘foreign to the duties of an attorney.’”

It found that the additional allegations about the intentional misrepresentations to

shift tax liability did not bring the conduct outside the scope of the firm's duties to

its client.

. . . .

In April 2018, the Supreme Court of Texas reaffirmed in Youngkin that

Cantey Hanger “controls [its] analysis of attorney immunity” and summarized the

Cantey Hanger rule as follows: “[A]n attorney may be liable to nonclients only for

conduct outside the scope of his representation of his client or for conduct foreign

to the duties of a lawyer,” which “inquiry correctly focuses on the kind of conduct

at issue rather than the alleged wrongfulness of said conduct.” The court noted that

“[t]he only facts required to support an attorney-immunity defense are the type of

conduct at issue and the existence of an attorney-client relationship at the time.”

In Youngkin, the plaintiff alleged that the attorney knowingly participated

in a fraudulent scheme to deprive the plaintiff of property by entering a settlement

agreement on his clients’ behalf “knowing they had no intention to comply,”

helping his clients avoid compliance by preparing a deed used to transfer the

property to another person, and aiding that person in his efforts to wrongfully assert

ownership of the property. The court noted that it was required, under Cantey

Hanger, to “look beyond [the plaintiff’s] characterizations of activity as fraudulent

and conspiratorial and focus on the conduct at issue,” which it described as

“negotiating and entering a settlement agreement, preparing transfer documents,

and filing a lawsuit.” The court found that this “conduct was directly within the

scope of [the lawyer’s] representation of his clients, regardless of any disagreement

over the substance of the settlement agreement” and was “not foreign to the duties

of a lawyer.”

Ironshore Europe DAC, 912 F.3d at 764-66) (citing Cantey Hanger, LLP, 467 S.W.3d at 481-85;

and Youngkin, 546 S.W.3d at 678-89) (footnotes and other citations omitted).

Thus, in sum, the Fifth Circuit determined that, under Texas law:

Whether an attorney’s conduct was in the scope of his representation of a

client is a legal question. Attorney immunity applies to all “actions taken in

connection with representing a client in litigation,” even wrongful conduct that is

“part of the discharge of the lawyer’s duties in representing his or her client,” as

long as it is not “entirely foreign to the duties of an attorney.” For this analysis, the

Supreme Court of Texas has repeatedly instructed courts to simply look to the

general kind of conduct at issue and whether attorneys engage in that kind of

conduct when discharging duties to a client.

Ironshore Europe DAC, 912 F.3d at 767) (citing Cantey Hanger, LLP, 467 S.W.3d at 481-82; and

Youngkin, 546 S.W.3d at 683) (footnotes and other citations omitted).

Applying the reasoning in Cantey Hanger and Youngkin to the facts as pleaded by the

plaintiff, the court in Ironshore Europe DAC concluded that the district court erred in determining

that Texas’s attorney immunity did not apply to the plaintiff’s negligent misrepresentation claims

and Schiff Hardin’s attorney immunity defense: “The Cantey Hanger court’s rejection of the

argument that attorney immunity does not extend to fraudulent and other intentional conduct

committed by the attorney in the course of representing his client makes it clear to us that the

Supreme Court of Texas would extend immunity to the much less egregious conduct of negligent

misrepresentation, whether or not the non-client relied on the negligent misrepresentation.”

Ironshore Europe DAC, 912 F.3d at 766.

In this regard, the Ironshore Europe DAC court reasoned that the facts alleged by the

plaintiff reflect that the alleged conduct (Schiff Hardin’s alleged misrepresentations and

omissions) all related to its representation of its client in litigation notwithstanding the plaintiff’s

contentions to the contrary and focus on the alleged wrongfulness of such conduct:

The factual allegations of the complaint in this case reflect that all of the

alleged misrepresentations and omissions were related to Schiff Hardin’s

representation of Dorel in the Hinson litigation. Looking beyond Ironshore’s

characterization of the firm’s conduct as wrongful, as we must, the type of conduct

at issue in this case includes: (1) reporting on the status of litigation and settlement

discussions; (2) providing opinions as to the strength and valuation of plaintiffs’

claims; (3) providing opinions as to the perceived litigation strategies employed by

opposing counsel and the potential prejudice of pre-trial developments; (4)

providing estimates of potential liability; (5) reporting on the progress of a jury

trial; and (6) reporting on pre-trial rulings and pre-trial settlement offers.

We are satisfied that the kinds of conduct at issue in this case fall within the

routine conduct attorneys engage in when handling this type of litigation. Schiff

Hardin’s conduct falls squarely within the scope of the firm’s representation of its

client. This court is “not bound to accept as true [plaintiff's] legal conclusion” that

the misrepresentations were somehow “separate from [Schiff’s] representation and

defense of Dorel” and “not necessary to, nor a part of, Schiff’s defense of Dorel in

the Lawsuit.” Immunity is established on the face of the complaint, which alleges

only misrepresentations and omissions related to the Hinson litigation, in which

Schiff Hardin undisputedly represented Ironshore’s insured Dorel in the defense of

a products liability case. Schiff Hardin’s first duty was to its client, Dorel, and it

was up to Ironshore to retain its own counsel if it was dissatisfied with the

comprehensiveness of the information it was receiving from its insured’s attorneys.

Therefore, we find that the requirements for attorney immunity are met, Schiff

Hardin’s Rule 12(b)(6) motion to dismiss should be granted, and the plaintiff's

complaint should be dismissed.

Ironshore Europe DAC, 912 F.3d at 767 (citations omitted).

The same reasoning applies with equal force here. Plaintiff’s claims for tortious

interference with contracts stem from Defendants’ conduct while representing Mr. Boyd and Mr.

Marshall in their respective arbitration proceedings against Aerotek. Their conduct involved

submitting materials and information to the arbitrators in an effort to obtain favorable rulings on

behalf of their clients. Such conduct constitutes routine conduct that attorneys engage in when

handling this type of litigation and falls squarely within the scope of Defendants’ representation

of their clients in the arbitrations against Aerotek. See id.

Aerotek’s reliance on Moore v. Anson Financial, Incorporated in an attempt to distinguish

Defendants’ conduct in this case from the kind of conduct that an attorney or law firm normally

engages in when discharging his or her duties to a client is misplaced, as the Moore court rejected

arguments similar to those asserted here by Aerotek concerning Defendants’ handling of their

clients’ confidential information and concluded that the attorney privilege applied. See Moore,

2020 WL 1293695, at *4-5) (citing Cantey Hanger, 467 S.W.3d at 482 (“If an attorney’s conduct

violates his professional responsibility, the remedy is public, not private.”); and Blankinship v.

Brown, 399 S.W.3d 303, 311 (Tex. App.—Dallas 2013, pet. denied) (“The Texas Disciplinary

Rules of Professional Conduct expressly state that a violation of the Code of Professional

Responsibility does not give rise to a private cause of action.”)) (other citations omitted). Further,

the Cantey Hanger court noted that, even if an attorney’s conduct in representing his or her clients

is wrongful, there are “other mechanisms are in place to discourage and remedy such conduct,

such as sanctions, contempt, and attorney disciplinary proceedings.” Cantey Hanger, 467 S.W.3d

at 482 (citations omitted). Thus, contrary to Aerotek’s assertion, conduct that violates the Texas

Disciplinary Rules of Professional Conduct does not preclude a finding that an attorney is

“immune from civil liability to non-clients ‘for actions taken in connection with representing a

client in litigation.’” Id. at 481 (citations omitted).

It is also undisputed that the type of conduct that Defendants engaged in did not involve,

for example, “assaulting opposing counsel during trial,” which has been held to fall outside the

scope of client representation. Id. at 482 (citations omitted). Likewise, even assuming as Aerotek

alleges that Defendants’ conduct in disclosing the confidential arbitration awards to the arbitrators

caused their clients to breach their employment contracts with Aerotek, the allegations in

Plaintiffs’ Complaint make clear this conduct occurred in the context of the arbitration

proceedings, and that Defendants did so in an effort to benefit their clients or give them an

advantage in their respective arbitrations. For Aerotek to now claim otherwise in response to

Defendants’ Motion to Dismiss contradicts its pleadings that Defendants’ conduct benefited Mr.

Marshall and Mr. Boyd to Aerotek’s detriment by increasing Mr. Marshall’s damages award on

his hostile work environment claim against Aerotek and reducing the amount of attorney’s fees

that Mr. Boyd was required to pay Aerotek in connection with its counterclaim. Zealous advocacy

such as this by Defendants in the arbitrations on behalf of their clients is precisely the type of

attorney conduct to which Texas’s attorney privilege is meant to apply and protect.

The court, therefore, determines that the requirements for attorney immunity are

established on the face of Plaintiff’s pleadings. Moreover, given the Texas Supreme Court’s

determination that attorney immunity extends to fraudulent and other intentional conduct

committed by the attorney in the course of representing his client, the court determines that the

Supreme Court of Texas would extend immunity to the conduct alleged by Aerotek in this case

concerning Defendants’ allegedly tortious interference with their clients’ employment contracts

with Aerotek, even though Aerotek alleges that such conduct was intentional and willful. See

Tronshore Europe DAC, 912 F.3d at 766. Accordingly, Defendants are entitled to dismissal of

both of Plaintiffs’ claims for tortious interference with a contract on this ground, and such claims

will be dismissed with prejudice.

C. Judicial Proceedings Privilege

Having determined that Plaintiffs claims fail for the reasons already explained, the court

need not address the parties’ contentions regarding the applicability of the judicial proceedings

privilege to this case.

IV. Conclusion

For the reasons stated, Defendants’ Motion to Dismiss (Doc. 16) is granted, and Plaintiff's

claims for tortious interference with a contract are dismissed with prejudice. The court, as

required by Federal Rule of Civil Procedure 58, will issue a judgment by a separate document.

It is so ordered this 17th day of March, 2026.

United States District Judge

Memorandum Opinion and Order — Page 17