You Only Need to Take One Deposition in New York.

The Question Is Narrower Than It Looks.

You have one deposition in New York. A witness lives here, a corporate representative sits here, or a non-party is being produced here. Filing a full pro hac vice motion for a single day of testimony feels disproportionate, and sometimes it is.

The answer turns on one fact. Is the deposition discovery in a pending New York action, or is it something else, such as a deposition in your own state's case taken here because the witness is here?

New York Has a Temporary Practice Rule.

22 NYCRR Part 523 governs temporary practice in New York by lawyers admitted elsewhere in the United States. Section 523.1 sets the outer limits. A lawyer may provide temporary legal services in New York provided the lawyer does not establish an office or “other systematic and continuous presence” in New York and does not hold out to the public or otherwise represent that the lawyer is admitted to practice here.

Section 523.2(a)(3) sets out the categories that qualify. Four matter for deposition work.

Section 523.2(b) excludes two groups from the rule. Legal consultants licensed under 22 NYCRR Part 521 and in-house counsel registered under 22 NYCRR Part 522 have their own regimes.

Temporary Does Not Mean Unsupervised.

Section 523.3 provides that a lawyer providing temporary legal services under Part 523 is subject to the New York Rules of Professional Conduct and to the disciplinary authority of New York “to the same extent as if the lawyer were admitted” here. You get the access without the admission, and you take the accountability with it.

Where 520.11 Still Reaches You.

If the deposition is discovery in a pending New York action, the temporary practice analysis does not get you past 22 NYCRR 520.11(c). That subsection provides that no attorney may be admitted pro hac vice “to participate in pre-trial or trial proceedings unless he or she is associated with an attorney who is a member in good standing of the New York bar, who shall be the attorney of record in the matter.” A deposition is a pre-trial proceeding.

The practical reading, and this is a judgment about how New York parts actually operate rather than a quotation from the rule, is that a New York attorney of record makes the whole question go away. With one in the case, the second hook in 523.2(a)(3) is satisfied on its own terms and there is no argument to have.

Limited Scope Is Available.

CPLR 321(d) permits an attorney to appear for a limited purpose. Local counsel who appears for the deposition alone does not have to stay in the case afterward, and the limited nature of the appearance goes on the record. That is the mechanism that makes a one-day engagement clean rather than an open-ended one.

Question Form Is Not the Same Here.

This is the practical difference that surprises out-of-state counsel most often, and it costs more than any admission question.

CPLR 3113(c) provides that examination and cross-examination of deponents proceed “as permitted in the trial of actions in open court,” and that when a party's deposition is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Trial rules govern. That makes your questioning of an adverse witness the examination in chief, and it reserves cross-examination for the deponent's own counsel.

The consequence is that leading and tag questions draw form objections. 22 NYCRR 221.1(b) requires that an objection be stated succinctly and framed so as not to suggest an answer, and provides that “at the request of the questioning attorney, [it] shall include a clear statement as to any defect in form.” Under CPLR 3115(b), errors in the form of questions are waived unless objection is made at the deposition, which is why opposing counsel makes them.

The reason it matters is the transcript. A question that contains its own answer produces a one-word ratification of your sentence, and on a summary judgment motion your adversary argues the witness merely adopted your characterization. An open question produces the witness's own words, and there is nothing to argue about.

Part 221 Governs the Room.

22 NYCRR 221.1(a) limits objections to those waivable under CPLR 3115 and requires that the objection be noted, the answer given, and the deposition proceed subject to the objection. 22 NYCRR 221.2 permits a direction not to answer only where the question seeks privileged matter, violates a court-ordered limitation, or is plainly improper and would cause significant prejudice, and any such direction requires a succinct statement of the basis. 22 NYCRR 221.3 bars an attorney from interrupting to confer with the deponent absent consent or a Part 221.2 determination.

Know these before you walk in. A deposition where opposing counsel is directing the witness not to answer without stating a basis is a deposition where you need the rule number on the record.

What This Office Does.

We take and defend examinations before trial, examinations under oath, and 50-h hearings throughout New York, and we appear as associated New York counsel for out-of-state attorneys who are conducting the examination themselves. You get a report by the end of the business day, covering what the witness said, what was demanded, and what the record left open.

Email the deposition notice, the caption, and the posture of the case. You will get an answer the same day on whether the appearance needs a motion, whether temporary practice covers it, and what the part expects.

Frequently Asked Questions.

Do I need pro hac vice admission to take one deposition in New York?

It depends on whether the deposition is part of a pending New York action. 22 NYCRR Part 523 allows a lawyer admitted elsewhere in the United States to provide temporary legal services in New York in defined circumstances, one of which is services reasonably related to a pending or potential proceeding in which the lawyer is authorized to appear or reasonably expects to be authorized. If the deposition is discovery in a New York action, 22 NYCRR 520.11(c) is the rule that governs and it requires association with a New York attorney of record.

What does Part 523 actually permit?

Section 523.1 permits temporary legal services in New York provided the lawyer does not establish an office or other systematic and continuous presence here and does not hold out to the public as admitted in New York. Section 523.2(a)(3) then sets the categories, which include services undertaken in association with a New York lawyer who actively participates in the matter, services reasonably related to a pending or potential proceeding, services in an alternative dispute resolution proceeding that does not require pro hac vice admission, and services reasonably related to the lawyer's practice in the jurisdiction where the lawyer is admitted.

Am I subject to New York discipline if I appear under Part 523?

Yes. Section 523.3 provides that a lawyer providing temporary legal services in New York is subject to the New York Rules of Professional Conduct and to discipline to the same extent as if the lawyer were admitted here. Temporary practice is not practice without accountability.

Can I use leading questions at a New York deposition?

Not when you are the examining attorney taking the deposition of an adverse party. CPLR 3113(c) provides that examination and cross-examination proceed as permitted at trial, which makes your questioning the examination in chief and reserves cross-examination for the deponent's own attorney. Tag questions such as adding correct or right to the end of a statement draw a form objection under 22 NYCRR 221.1(b), and under CPLR 3115(b) form objections not made at the deposition are waived.