The attorney for the Plaintiff in Foster Biodevice, LLC v. Cantrell. 2016 NCBC 51 said that he was only making a limited appearance, but the Business Court (through new Business Court Judge Robinson, in his first Opinion for the Court) wasn’t buying the limited nature of the appearance.
Plaintiff’s counsel had previously obtained an Order from Judge Bledsoe permitting him to withdraw as counsel for Foster Biodevice. He then appeared in the case and filed a Voluntary Dismissal of the case Without Prejudice after his withdrawal. He stated in the Voluntary Dismissal that he was "making a limited appearance . . . for the sole purpose of filing this Notice of Limited Appearance and Voluntary Dismissal Without Prejudice."
Limited Appearances Are Allowed Under The Revised Rules Of Professional Responsibility
The Revised Rules of Professional Conduct of the North Carolina State Bar permit limited appearances. Rule 1.2(c) says that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances.” in a "Formal Ethics Opinion," the State Bar said that the ability of an attorney, in a litigated matter, to make a “limited appearance” is subject to the "rules of the tribunal." 99 FEO 12, Inquiry No. 3.
Judge Robinson rejected the "limited appearance," saying that he "deem[ed] Plaintiff’s counsel to be . . . counsel of record for Plaintiff in this matter, at least with regard to proceedings in this Court, subject to all of the responsibilities of counsel of record." Op. ¶25.
Judge Robinson pointed out that there was no Rule (either in the Business Court Rules, the Rules of Civil Procedure, or the Rules of General Practice) "that would permit a limitation of responsibility under these circumstances." Op. ¶25.
Judge Robinson also looked to Rule 16 of the General Rules of Practice, which says that "[n]o attorney who has entered an appearance in any civil action shall withdraw his appearance, or have it stricken from the record, except on order of the court." Op. ¶25
Was This Plaintiff Entitled To Take A Voluntary Dismissal?
Beyond the issue of the attempted "limited appearance," Judge Robinson dealt with the issue of whether the Plaintiff was entitled to file a voluntary dismissal of its case. The answer ordinarily depends on whether the party taking the dismissal has "rested its case." The Business Court explored that question recently.
In the case before Judge Robinson, the question was slightly different. Another restraint on taking a voluntary dismissal applies when the opposing party has made a claim for affirmative relief arising out of the same transaction which is the subject of the attempted dismissal. The Defendant here had asked in its prayer for relief (though not in a counterclaim) for a declaratory judgment that it was the owner of the intellectual property which was at issue in the Complaint.
That prayer for relief wasn’t enough for Judge Robinson to deny the Plaintiff the right to take a voluntary dismissal. He said that it was nothing "but a standard request that the Court deny Plaintiff’s requested relief." Op. ¶25.
Since Judge Robinson allowed the voluntary dismissal without prejudice, does it make any difference that Plaintiff”s counsel must remain as Plaintiff’s counsel of record? Probably not, since there is no longer a case in which that lawyer is required to appear.
Though it might make no difference to the attorney for Foster Biodevice, the ruling should cause all lawyers to consider whether they can limit the scope of their responsibility in a particular case and state that they are making a limited appearance. They may find themselves committed more deeply than they had anticipated.
Coincidentally, yesterday I saw lawyers file Notices of Appearances in the Business Court in three related cases on a limited basis, in which they said they are appearing solely to deal with one particular Motion. That limitation may not work for them, although that case is not before Judge Robinson.
Judge Robinson Finally Joins The Court
You’ve known for a long time that Governor McCrory nominated Michael Robinson to be a Business Court Judge. That happened over a year ago, back in March of 2015. He was confirmed by the NC General Assembly on June 16th, and was sworn in as the newest Judge on the Business Court on July 1st.
Judge Gale has reassigned a number of the cases previously pending in the Business Court to Judge Robinson. If you’ve got a case in the Business Court, you might want to check to see if your case has been reassigned to Judge Robinson.
Judge Robinson will be holding court in a new courtroom (which is not yet ready) at Wake Forest Law School in Winston–Salem. For the time being, he will be sharing a courtroom and chambers with Chief Judge Gale, in Greensboro.