07-9087-am In re Peter Koenig

1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 5 August Term, 2009 8 (Decided: January 14, 2010) 10 Docket No. 07-9087-am ______________________________________________________ In re Peter Koenig, 20 Attorney.

23 ______________________________________________________ Before: Cabranes, Sack, and Wesley, Circuit Judges.

29 This Court’s Committee on Admissions and Grievances (“the Committee”) has recommended that Peter Koenig, an attorney admitted to the bar of the State of New York, be disciplined. We adopt the Committee’s findings of fact, publicly reprimand Koenig for the misconduct described in the Committee’s report, and bar him from admission to the bar of this Court and from the practice of law before this Court in any future cases.

37 Peter Koenig, Esq., New York, 38 N.Y., pro se.

1 PER CURIAM: 2 By order filed in December 2007, this panel referred Peter Koenig to this Court’s Committee on Admissions and Grievances (“the Committee”) for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures.

7 During the Committee’s proceedings, Koenig had the opportunity to address the matters discussed in the Court’s referral order and to testify under oath at a hearing held on September 9, 2008. Prior to the hearing, Koenig submitted a one- page response to the December 2007 order; although he was given the opportunity to submit post-hearing supplementary materials, he declined to do so. Koenig represented himself during the Committee’s proceedings. Presiding over the hearing were the Honorable Howard Levine, Mary Jo White, Esq., and Loretta Lynch, Esq. In March 2009, the Committee filed with the Court the record of the Committee’s proceedings and its report and recommendations.

18 Thereafter, the Court provided Koenig with a copy of the Committee’s report, and Koenig responded that he did not intend to contest the report.

21 In its report, the Committee concluded that there was clear and convincing evidence that Koenig had engaged in conduct warranting the imposition of discipline. Specifically, the Committee found that Koenig had, inter alia, neglected nine cases before the Court; failed to notify at least one client that her case had been dismissed, causing her to be seized by immigration authorities; and repeatedly appeared as counsel of record in this Court without ever having been admitted to this Court’s bar. See Report at 5-8. After noting the presence of various aggravating and mitigating factors, id. at 6, 8, and that Koenig did not intend to practice in this Court in the future, id. at 8, the Committee recommended that he be precluded from admission to this Court’s bar and from the practice of law before this Court in any future cases, id. at 9.

10 Upon due consideration of the Committee’s report, the underlying record, and Koenig’s submissions, it is hereby ORDERED that the Committee’s findings and recommendations are adopted by the Court, and Koenig is PUBLICLY REPRIMANDED for the misconduct described in the Committee’s report and BARRED from admission to the bar of this Court and from the practice of law before this Court in any future cases.

17 The fact that Koenig is not a member of this Court’s bar does not shield him from this Court’s disciplinary authority. An attorney who avails himself of the privileges of practice before this Court also accepts the duties and obligations that are an inherent part of that practice. Although this Court has not explicitly addressed this point in its case law, Rule 46(c) of the Federal Rules of Appellate Procedure makes clear the authority of this Court over non-member attorneys who practice before this Court: “[a] court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” Unlike Rule 46(b), the scope of Rule 46(c) is not limited to members of the Court’s bar. See also Fed. R. App. P. 46, 1967 Advisory Committee’s Note, ¶ 4 (stating that Rule 46(c) “affords some measure of control over attorneys who are not members of the bar of the court”).

7 We clarify one additional point, in order to avoid future misunderstanding of the import of this order. We do not deem the sanction we now impose, barring Koenig from admission to this Court’s bar, to be equivalent to the disbarment of an attorney who is already a member of this Court’s bar. Although we have no control over the form of reciprocal discipline that other disciplinary authorities may impose on Koenig based on this order, we do not wish to give the impression that we are imposing a sanction that is equivalent to the more severe sanction of disbarment.

17 This order must be disclosed in any future disciplinary proceeding or bar application, and if required by any bar or court rule or order. Furthermore, the Clerk of Court is directed to release this order to the public by posting it on this Court’s web site and providing copies to members of the public in the same manner as all other published decisions of this Court. The text of this panel’s December 2007 order and the Committee’s report are also to be released to the public, as appendices to the present order. The Clerk of Court also is directed to serve a copy of this order on Koenig, this Court’s Committee on Admissions and Grievances, the attorney disciplinary committee for the New York State Appellate Division, First Department, the attorney disciplinary officials for the Executive Office of Immigration Review, and all other courts and jurisdictions to which this Court distributes disciplinary decisions in the ordinary course.

8 APPENDIX 1 9 Text of December 2007 order 11 For the reasons that follow, Peter Koenig is referred to this Court’s Committee on Admissions and Grievances for investigation of the matters described below and preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Second Circuit Local Rule 46(h).1 We express no opinion here as to an appropriate disposition. The Committee may, of course, in the first instance, determine the appropriate scope of its investigation.

20 Since 2004, this Court has dismissed 9 of the 11 petitions for review for which Koenig was counsel of record for the petitioners, based on the petitioners’ failure to comply with this Court’s scheduling orders. See Second Circuit cases docketed under 03-4979; 03-41023; 04-2579; 04-2821; 05-0163; 05-4777; 06- 3540; 06-3542; 06-3544.

27 Furthermore, in Duka v. Ashcroft, the petitioner, in an affidavit accompanying her motion to reinstate her petition for review, stated that Koenig, after accepting an $850 retainer and agreeing to a total fee of $3000, regularly refused to speak with her about her case and permitted the appeal to be dismissed in December 2005 based on his failure to file a brief. See Duka, 04- 2579-ag, motion filed June 29, 2007 (Pet’r Aff.) ¶¶ 7–8.

34 According to the petitioner, in June or July 2006, Koenig informed the petitioner that her work authorization had been denied due to the pendency of her case in this Court and that he could not assist her with the work authorization denial. Id. at ¶ 9. In Second Circuit Local Rule 46(h) was superseded by new Local Rule 46.2 as of January 1, 2010.

1 May 2007, the petitioner was detained by immigration officials, who informed her that her appeal in this Court had been dismissed in December 2005. Id. at ¶ 11. After obtaining new counsel, the petitioner learned that Koenig had never submitted a brief on her behalf, and, as a result of that default, her petition had been dismissed. Id. at ¶ 12. The petitioner’s new counsel stated that, although she had attempted to contact Koenig by telephone on several occasions, leaving messages explaining the situation and requesting that Koenig call counsel as soon as possible, Koenig failed to respond. Id. (Brown Decl.) at ¶ 5. In June 2007, the petitioner’s new counsel sent Koenig a letter, again advising him of the situation and requesting that he contact counsel immediately to assist in the preparation of the petitioner’s motion for reinstatement, but again Koenig failed to respond. Id. at ¶¶ 6–7. After the appeal was reinstated and a brief was filed for the petitioner, the case was remanded to the agency for a new decision, pursuant to a stipulation of the parties. Id., order filed Oct. 31, 2007.

20 Finally, we note that the records of this Court indicate that, although Koenig has represented a number of parties in this Court, Koenig has never been admitted to this Court’s bar, has no admission application pending, and has not sought to be admitted pro hac vice.

26 Upon due consideration of the matters described above, it is ORDERED that Peter Koenig is referred to this Court’s Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court’s Local Rule 46(h), and the Rules of the Committee on Admissions and Grievances.

34 FOR THE COURT: 35 Catherine O’Hagan Wolfe, Clerk 37 By:_______/s/_________________ 38 Michael Zachary 39 Supervisory Staff Attorney 40 Counsel to Grievance Panel