Eleventh Circuit Clarifies: Post-Representation Privacy Torts Are Outside Narrow Retainer Arbitration Clauses; “Confidential Arbitration” Is Not a Duty of Confidentiality

Introduction

In Janet L. Schmidt and John Fernstrom v. Juan C. Antunez and Kimberly Martinez‑Lejarza (11th Cir. Oct. 7, 2025) (unpublished, per curiam), the Eleventh Circuit affirmed an order denying a motion to compel arbitration brought by two former lawyers against their former clients. The clients sued in federal court for public disclosure of private facts under Florida common law after their former lawyers filed, on public dockets in four unrelated state cases, the clients’ retainer agreement and detailed billing records connected to a fee dispute pending in the American Arbitration Association (AAA).

The core issue was whether a retainer’s arbitration clause, which covered “any controversy or claim arising out of or related to fees, costs or any legal services or other services provided under this engagement agreement,” swept in a post-termination privacy tort stemming from publication of client confidences. The panel held it did not. It also rejected the lawyers’ arguments that (i) the clause’s reference to “binding, confidential arbitration” created a contractual duty of confidentiality, and (ii) the tort claim was “inextricably intertwined” with the retainer because the retainer was among the documents disclosed.

Summary of the Opinion

Applying de novo review and the Federal Arbitration Act’s (FAA) presumption of arbitrability, the Eleventh Circuit held:

The invasion-of-privacy claim did not “arise out of” or “relate to” fees, costs, or legal services “provided under” the retainer because the alleged disclosures occurred months after representation ended and lacked a direct relationship to the performance of contractual duties.
“Confidential” in the phrase “binding, confidential arbitration” modifies the noun “arbitration” (describing the nature of the arbitral proceeding) and does not create an affirmative, contract-based duty of confidentiality between lawyer and client.
That the retainer agreement and billing statements were the published materials (and referenced in the complaint) did not convert a Florida common-law privacy tort into a dispute “arising out of” or “related to” the retainer; the duty allegedly breached is imposed by law and owed broadly, not by the contract.
The “but-for” connection between the retainer and the alleged tort is insufficient to trigger arbitration; a direct relationship to contract performance is required.

The denial of the motion to compel arbitration was affirmed. The court expressly did not reach the merits of the tort claim and assumed, without deciding, that the individual lawyers could enforce the retainer’s arbitration clause.

Analysis

Precedents Cited and Their Influence

Lubin v. Starbucks Corp., 122 F.4th 1314 (11th Cir. 2024) — Reiterates de novo review of orders denying arbitration and the FAA’s presumption of arbitrability: doubts about scope favor arbitration. The court acknowledged the presumption but emphasized it cannot obliterate textual limits on an arbitration clause.
Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109 (11th Cir. 2001) — Core contract-law principle: a party cannot be forced to arbitrate issues it did not agree to arbitrate. This framed the analysis as one of contract interpretation.
Hearn v. Comcast Cable Commc’ns, LLC, 992 F.3d 1209 (11th Cir. 2021) — Supplies the “direct relationship” test: “arises out of” and “relates to” require the dispute to be an immediate, foreseeable result of performing the contract; a direct link to contractual duties is necessary. The panel leaned on Hearn to confirm that a mere background connection isn’t enough.
Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204 (11th Cir. 2011) — Further confines the scope of “related to” as limiting language requiring a direct relationship; otherwise the term would “stretch to the horizon and beyond.” This bolstered rejection of an overbroad reading of “related to.”
Armada Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir. 1984) — “But-for” causation is insufficient to compel arbitration; a sufficiently close nexus to the execution or performance of the contract is required. The court used this to reject the idea that because the retainer existed, all disputes tangentially connected to it are arbitrable.
ECB USA, Inc. v. Chubb Ins. Co. of New Jersey, 113 F.4th 1312 (11th Cir. 2024) — Grammar canon: adjectives and adjectival phrases typically modify the closest reasonable noun. Applied to read “confidential” as modifying “arbitration,” not as creating a freestanding confidentiality obligation.
In re Home Depot Inc., 931 F.3d 1065, 1086 (11th Cir. 2019) — Distinguishes raising new issues from making new arguments on preserved issues; parties may present new arguments on appeal in support of a properly preserved issue. This allowed the appellants to advance certain interpretive arguments even though not framed identically below.
Allstate Ins. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003) — Defines Florida’s tort of public disclosure of private facts: dissemination of truthful private information that a reasonable person would find objectionable. The court relied on Florida law to characterize the nature of the claim as a tort independent of contract.
Seifert v. U.S. Home Corp., 750 So. 2d 633, 639 (Fla. 1999) — If the duty breached is imposed by law and owed generally, the dispute sounds in tort and does not “arise from” the contract for purposes of a contractual arbitration requirement. This supported the conclusion that the privacy claim fell outside the retainer’s scope.
9 U.S.C. § 16(a)(1)(C) — Confers appellate jurisdiction over orders denying motions to compel arbitration.

Legal Reasoning

The court progressed through four principal steps.

Textual scope of the clause. The retainer required arbitration of disputes “arising out of or related to fees, costs or any legal services or other services provided under this engagement agreement (including malpractice).” The panel read the phrase “provided under this engagement agreement” as a textual limit: the clause reaches disputes tied to services actually provided during the life of the engagement.
Direct relationship requirement controls “arises out of/related to.” Anchoring in Hearn and Doe, the court required a direct relationship between the dispute and the performance of contractual duties. The alleged conduct (public docket filings of private client information) occurred months after termination and was not an immediate, foreseeable result of performing the retainer. The “but-for” existence of the retainer and billing records was too attenuated under Armada Coal.
“Confidential arbitration” does not create a confidentiality duty. Invoking ECB USA’s grammar canon, the court rejected the argument that the clause imposed a confidentiality duty. “Confidential” modified “arbitration” (describing the arbitral proceeding), not the parties’ broader conduct. The retainer contained no independent confidentiality provision.
The tort is independent of the retainer. Citing Allstate and Seifert, the court emphasized that the cause of action arises from Florida common law and an obligation owed generally, not from the contract. That the retainer was among the disclosed documents or that the complaint referenced it repeatedly did not transform a tort into a contract-based dispute. The “inextricably intertwined” label could not overcome the absence of a direct link to contractual performance.

The panel also (i) assumed without deciding that the lawyers could enforce the clause in their individual capacities, and (ii) clarified that recognizing the clause’s limits did not “add” an artificial condition; the limitation flowed from the clause’s own language restricting arbitrable disputes to those tied to services “provided under” the engagement.

Impact

Although unpublished and therefore non-precedential in the Eleventh Circuit, the opinion is a careful, persuasive application of existing arbitrability doctrine to a common attorney–client scenario. It has several practical and doctrinal implications:

Scope matters. Narrow retainer arbitration clauses tied to “fees, costs, or services provided under the engagement” will not capture post-representation torts or other disputes lacking a direct relationship to the performance of services under the retainer.
“Confidential arbitration” ≠ confidentiality duty. Drafters who intend to impose bilateral confidentiality obligations must add a stand-alone confidentiality covenant. A mere description of the arbitration as “confidential” is insufficient.
But-for links are not enough. Parties cannot compel arbitration simply because the dispute would not exist but for the contract. The Eleventh Circuit continues to police the boundary between “direct relationship” and attenuated connections.
Post-termination conduct lies outside narrow clauses. When the engagement has ended, disputes springing from later conduct—especially torts concerning dissemination of information—are less likely to be arbitrable absent explicit language extending the clause to post-termination disputes.
Drafting lessons for law firms.
- Broaden the arbitration clause if desired: e.g., cover “any claim or dispute arising out of, relating to, or in connection with this Agreement, the attorney–client relationship, or the termination thereof, whether sounding in contract, tort, statute, or otherwise, and whether arising before, during, or after the representation.”
- Include explicit confidentiality provisions governing treatment of client information and billing records and specify survival after termination.
- Add a survival clause and a post-termination dispute resolution provision if the intent is to arbitrate disputes that arise after representation ends.
Litigation conduct caution. Filing fee-dispute materials (retainers, detailed bills) on public dockets in unrelated cases invites exposure to privacy or professional-responsibility claims; protective orders or sealed filings should be considered where appropriate.
Arbitrability briefing. Parties should consider whether a delegation clause exists. Here, no delegation issue was presented; courts decide scope absent clear and unmistakable delegation to the arbitrator.

Complex Concepts Simplified

Presumption of arbitrability. Under the FAA, when a contract contains an arbitration clause, close calls about whether a particular dispute falls within the clause are resolved in favor of arbitration. This presumption does not permit courts to ignore clear textual limits in the clause.
“Arising out of” and “related to.” These phrases are broad but not boundless. The Eleventh Circuit requires a direct relationship between the dispute and the performance of duties under the contract—something more than a mere background or “but-for” connection.
Direct relationship vs. but-for causation. A “but-for” connection means the contract’s existence was a factual predicate. A direct relationship means the dispute is an immediate, foreseeable result of doing (or not doing) what the contract requires.
“Confidential arbitration” phrase. Saying arbitration will be “confidential” typically describes the proceeding (e.g., non-public hearings, sealed awards) and does not, without more, impose a bilateral duty to keep information confidential outside arbitration.
Public disclosure of private facts (Florida). A privacy tort that occurs when someone widely disseminates truthful, private information that a reasonable person would find highly offensive. The duty not to do so arises from common law, not from a contract.
Contractually imposed duties vs. duties imposed by law. If a duty exists because of the contract (e.g., to perform certain services), breaches may “arise from” the contract. If the duty is owed to the public generally (e.g., not to commit a tort), the dispute typically does not arise from the contract for arbitration purposes unless the clause expressly covers such claims.
Waiver vs. new arguments on appeal. If a party preserved the overall issue (e.g., clause interpretation), they may present new supporting arguments on appeal. New issues, however, generally cannot be introduced for the first time on appeal.
Non-signatory enforcement (assumed here). Sometimes non-signatories can enforce arbitration clauses. The court assumed, without deciding, that the individual lawyers could do so but found the claim outside the clause regardless.
Retaining lien and charging lien (mentioned in the clause). These are lawyer’s liens under Florida law to secure payment of fees (retaining lien on client papers; charging lien on recovery). Their reservation in the clause did not affect the arbitrability analysis of the privacy tort.

Conclusion

The Eleventh Circuit’s decision underscores two enduring principles of arbitrability. First, scope is governed by the words the parties chose. Even with the FAA’s presumption of arbitrability, courts will not compel arbitration of disputes that lack a direct relationship to the performance of contractual duties, particularly when the conduct occurred after the contract ended. Second, adjectival descriptions of the arbitration forum—such as “confidential”—do not themselves create substantive duties like confidentiality; those protections must be expressly stated.

For practitioners and drafters, the message is clear: if the intention is to arbitrate all disputes between lawyer and client, including post-termination torts, say so unambiguously and include stand-alone confidentiality obligations that survive termination. For litigants, the case signals that privacy-based claims premised on post-representation disclosures will typically be litigated in court where the retainer’s arbitration clause is limited to “fees, costs, or services provided under” the engagement. While unpublished, the opinion offers a careful and persuasive roadmap for analyzing the outer limits of “arising out of or related to” arbitration clauses in the attorney–client context.