     07-9087-am
     In re Peter Koenig



 1                    UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                                    August Term, 2009
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 7
 8                            (Decided: January 14, 2010)
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10                               Docket No. 07-9087-am
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15   ______________________________________________________
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17
18   In re Peter Koenig,
19
20                        Attorney.
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23   ______________________________________________________
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25
26   Before:    Cabranes, Sack, and Wesley, Circuit Judges.
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28

29         This Court’s Committee on Admissions and Grievances (“the

30   Committee”) has recommended that Peter Koenig, an attorney

31   admitted to the bar of the State of New York, be disciplined.          We

32   adopt the Committee’s findings of fact, publicly reprimand Koenig

33   for the misconduct described in the Committee’s report, and bar

34   him from admission to the bar of this Court and from the practice

35   of law before this Court in any future cases.

36
37                                               Peter Koenig, Esq., New York,
38                                               N.Y., pro se.
39

40
1    PER CURIAM:

2           By order filed in December 2007, this panel referred Peter

3    Koenig to this Court’s Committee on Admissions and Grievances

4    (“the Committee”) for investigation of the matters described in

5    that order and preparation of a report on whether he should be

6    subject to disciplinary or other corrective measures.

7           During the Committee’s proceedings, Koenig had the

8    opportunity to address the matters discussed in the Court’s

9    referral order and to testify under oath at a hearing held on

10   September 9, 2008.    Prior to the hearing, Koenig submitted a one-

11   page response to the December 2007 order; although he was given

12   the opportunity to submit post-hearing supplementary materials, he

13   declined to do so.    Koenig represented himself during the

14   Committee’s proceedings.    Presiding over the hearing were the

15   Honorable Howard Levine, Mary Jo White, Esq., and Loretta Lynch,

16   Esq.    In March 2009, the Committee filed with the Court the record

17   of the Committee’s proceedings and its report and recommendations.

18   Thereafter, the Court provided Koenig with a copy of the

19   Committee’s report, and Koenig responded that he did not intend to

20   contest the report.

21          In its report, the Committee concluded that there was clear

22   and convincing evidence that Koenig had engaged in conduct

23   warranting the imposition of discipline.    Specifically, the

24   Committee found that Koenig had, inter alia, neglected nine cases

25   before the Court; failed to notify at least one client that her

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1    case had been dismissed, causing her to be seized by immigration

2    authorities; and repeatedly appeared as counsel of record in this

3    Court without ever having been admitted to this Court’s bar.     See

4    Report at 5-8.   After noting the presence of various aggravating

5    and mitigating factors, id. at 6, 8, and that Koenig did not

6    intend to practice in this Court in the future, id. at 8, the

7    Committee recommended that he be precluded from admission to this

8    Court’s bar and from the practice of law before this Court in any

9    future cases, id. at 9.

10        Upon due consideration of the Committee’s report, the

11   underlying record, and Koenig’s submissions, it is hereby ORDERED

12   that the Committee’s findings and recommendations are adopted by

13   the Court, and Koenig is PUBLICLY REPRIMANDED for the misconduct

14   described in the Committee’s report and BARRED from admission to

15   the bar of this Court and from the practice of law before this

16   Court in any future cases.

17        The fact that Koenig is not a member of this Court’s bar does

18   not shield him from this Court’s disciplinary authority.   An

19   attorney who avails himself of the privileges of practice before

20   this Court also accepts the duties and obligations that are an

21   inherent part of that practice.   Although this Court has not

22   explicitly addressed this point in its case law, Rule 46(c) of the

23   Federal Rules of Appellate Procedure makes clear the authority of

24   this Court over non-member attorneys who practice before this

25   Court: “[a] court of appeals may discipline an attorney who

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1    practices before it for conduct unbecoming a member of the bar or

2    for failure to comply with any court rule.”    Unlike Rule 46(b),

3    the scope of Rule 46(c) is not limited to members of the Court’s

4    bar.    See also Fed. R. App. P. 46, 1967 Advisory Committee’s Note,

5    ¶ 4 (stating that Rule 46(c) “affords some measure of control over

6    attorneys who are not members of the bar of the court”).

7           We clarify one additional point, in order to avoid future

8    misunderstanding of the import of this order.    We do not deem the

9    sanction we now impose, barring Koenig from admission to this

10   Court’s bar, to be equivalent to the disbarment of an attorney who

11   is already a member of this Court’s bar.    Although we have no

12   control over the form of reciprocal discipline that other

13   disciplinary authorities may impose on Koenig based on this order,

14   we do not wish to give the impression that we are imposing a

15   sanction that is equivalent to the more severe sanction of

16   disbarment.

17          This order must be disclosed in any future disciplinary

18   proceeding or bar application, and if required by any bar or court

19   rule or order.    Furthermore, the Clerk of Court is directed to

20   release this order to the public by posting it on this Court’s web

21   site and providing copies to members of the public in the same

22   manner as all other published decisions of this Court.    The text

23   of this panel’s December 2007 order and the Committee’s report are

24   also to be released to the public, as appendices to the present

25   order.    The Clerk of Court also is directed to serve a copy of

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1    this order on Koenig, this Court’s Committee on Admissions and

2    Grievances, the attorney disciplinary committee for the New York

3    State Appellate Division, First Department, the attorney

4    disciplinary officials for the Executive Office of Immigration

5    Review, and all other courts and jurisdictions to which this Court

6    distributes disciplinary decisions in the ordinary course.

7

8                                APPENDIX 1

 9                      Text of December 2007 order
10
11        For the reasons that follow, Peter Koenig is referred to this
12   Court’s Committee on Admissions and Grievances for investigation
13   of the matters described below and preparation of a report on
14   whether he should be subject to disciplinary or other corrective
15   measures. See Second Circuit Local Rule 46(h).1 We express no
16   opinion here as to an appropriate disposition. The Committee may,
17   of course, in the first instance, determine the appropriate scope
18   of its investigation.
19
20        Since 2004, this Court has dismissed 9 of the 11 petitions
21   for review for which Koenig was counsel of record for the
22   petitioners, based on the petitioners’ failure to comply with this
23   Court’s scheduling orders. See Second Circuit cases docketed
24   under 03-4979; 03-41023; 04-2579; 04-2821; 05-0163; 05-4777; 06-
25   3540; 06-3542; 06-3544.
26
27        Furthermore, in Duka v. Ashcroft, the petitioner, in an
28   affidavit accompanying her motion to reinstate her petition for
29   review, stated that Koenig, after accepting an $850 retainer and
30   agreeing to a total fee of $3000, regularly refused to speak with
31   her about her case and permitted the appeal to be dismissed in
32   December 2005 based on his failure to file a brief. See Duka, 04-
33   2579-ag, motion filed June 29, 2007 (Pet’r Aff.) ¶¶ 7–8.
34   According to the petitioner, in June or July 2006, Koenig informed
35   the petitioner that her work authorization had been denied due to
36   the pendency of her case in this Court and that he could not
37   assist her with the work authorization denial. Id. at ¶ 9. In

          1
            Second Circuit Local Rule 46(h) was superseded by new
     Local Rule 46.2 as of January 1, 2010.

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 1   May 2007, the petitioner was detained by immigration officials,
 2   who informed her that her appeal in this Court had been dismissed
 3   in December 2005. Id. at ¶ 11. After obtaining new counsel, the
 4   petitioner learned that Koenig had never submitted a brief on her
 5   behalf, and, as a result of that default, her petition had been
 6   dismissed. Id. at ¶ 12. The petitioner’s new counsel stated
 7   that, although she had attempted to contact Koenig by telephone on
 8   several occasions, leaving messages explaining the situation and
 9   requesting that Koenig call counsel as soon as possible, Koenig
10   failed to respond. Id. (Brown Decl.) at ¶ 5. In June 2007, the
11   petitioner’s new counsel sent Koenig a letter, again advising him
12   of the situation and requesting that he contact counsel
13   immediately to assist in the preparation of the petitioner’s
14   motion for reinstatement, but again Koenig failed to respond. Id.
15   at ¶¶ 6–7. After the appeal was reinstated and a brief was filed
16   for the petitioner, the case was remanded to the agency for a new
17   decision, pursuant to a stipulation of the parties. Id., order
18   filed Oct. 31, 2007.
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20        Finally, we note that the records of this Court indicate
21   that, although Koenig has represented a number of parties in this
22   Court, Koenig has never been admitted to this Court’s bar, has no
23   admission application pending, and has not sought to be admitted
24   pro hac vice.
25
26        Upon due consideration of the matters described above, it is
27   ORDERED that Peter Koenig is referred to this Court’s Committee on
28   Admissions and Grievances for investigation and preparation of a
29   report, pursuant to Federal Rule of Appellate Procedure 46, this
30   Court’s Local Rule 46(h), and the Rules of the Committee on
31   Admissions and Grievances.
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34                                 FOR THE COURT:
35                                 Catherine O’Hagan Wolfe, Clerk
36
37                                 By:_______/s/_________________
38                                      Michael Zachary
39                                      Supervisory Staff Attorney
40                                      Counsel to Grievance Panel
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