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In re Koenig

Supreme Court of New York, First Department

January 31, 2013

In the Matter of Peter S. Koenig (admitted as Peter Stuart Koenig), an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Peter S. Koenig, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Peter S. Koenig, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on February 25, 1976.

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Raymond Vallejo, of counsel), for petitioner.

Richard M. Maltz, for respondent.

Angela M. Mazzarelli, Justice Presiding, Richard T. Andrias, David Friedman, John W. Sweeny, Jr., Karla Moskowitz, Justices.

PER CURIAM

Respondent Peter S. Koenig was admitted to the practice of law in the State of New York by the Second Judicial Department on February 25, 1976 under the name Peter Stuart Koenig. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Judicial Department.

The Departmental Disciplinary Committee now seeks an order, pursuant to 22 NYCRR 605.15(e)(2), confirming the Hearing Panel's determination which recommended that respondent be suspended from the practice of law for no less than three months.

In December 2007, the Second Circuit issued an order referring respondent to its Committee on Admissions and Grievances (CAG) based on his failure, with respect to nine of the eleven petitions for review that respondent had filed with the court, to file supporting briefs in accordance with the court's scheduling orders. Respondent's neglect led to the dismissal of those petitions. The referral order further indicated that, although respondent represented clients before the Second Circuit, he was never admitted to the bar of that court.

In March 2008, the CAG directed respondent to show cause why it should not recommend disciplinary and/or other corrective action regarding his conduct. Respondent was also directed to divulge any currently pending or previous disciplinary proceedings brought against him by any tribunal, bar association or other organization. In response, respondent submitted a brief, one-page letter which failed to provide the requested information regarding his disciplinary history. In September 2008, the CAG held a hearing at which respondent appeared pro se but presented no witnesses. Although respondent failed to provide the CAG with any documentation regarding his disciplinary history, he alluded during his testimony to the fact that he had been the subject of prior complaints submitted to the DDC (indeed, he had been admonished on three separate occasions for neglecting client matters). When reminded that the CAG had explicitly asked him to provide detailed information on this issue in its March 2008 letter, respondent indicated that he had been confused by the request.

In March 2009, the CAG issued its report concluding that respondent had neglected the nine immigration matters in which he failed to file briefs and that he had practiced before the Second Circuit without ever having been admitted. The CAG found respondent's misconduct was aggravated by, inter alia, his prior disciplinary history for neglect, his failure to provide the CAG with requested information, and his failure to acknowledge wrongdoing. The CAG also found, however, that respondent's misconduct was mitigated by, inter alia, the absence of a dishonest or selfish motive. As to sanction, the CAG recommended that respondent be precluded from admission to the Second Circuit's bar and barred from practice before that court in the future.

By order entered January 14, 2010, the Second Circuit adopted the CAG's findings and recommendation, publicly reprimanded respondent for his misconduct, and barred him from admission to the Second Circuit bar and from practicing before the court in the future [1]. In addressing the issue of possible reciprocal discipline by other jurisdictions, the Second Circuit explained that it did not consider its sanction of barring respondent from admission to be equivalent to the disbarment of an attorney already a member of the court's bar.

In October 2010, the Committee filed a petition for reciprocal discipline predicated upon the Second Circuit's January 14, 2010 order, but requested that respondent be suspended from practice for five years. In the alternative, the Committee requested that this Court impose whatever sanction it deemed appropriate. Respondent opposed the petition, but did not assert any of the defenses to reciprocal discipline set forth in 22 NYCRR 603.3(c). By order entered June 13, 2011, this Court granted the Committee's petition to the extent of finding respondent guilty of professional misconduct, barred respondent from asserting a defense under 22 NYCRR 603.3(c), and referred the matter to the Committee for a hearing before a Hearing Panel at which respondent was to have the opportunity to present mitigating evidence with respect to sanction.

At a hearing convened in November 2011, respondent testified on his own behalf, called several character witnesses, and introduced letters and affidavits attesting to his character. The Committee did not call any witnesses but introduced documentary evidence, which included the three prior admonitions issued to respondent. Respondent testified that he graduated from William and Mary Law School in 1975 and was admitted to practice in New York in 1976, and has practiced as a sole practitioner for 25 years, concentrating in immigration law but also handling some uncontested divorces and minor criminal matters. He further stated that in or about 2002 he began representing immigration clients before the Second Circuit. According to respondent, he filed petitions for review on behalf of his clients with the understanding that he was doing so solely to delay their deportation, and to give his clients additional time to consider their legal options. Respondent claimed that his clients were not interested in paying the substantial costs associated with a federal appeal. However, he explained that if, after he filed the petition, a client wished to perfect his appeal, respondent would refer him to an attorney who specialized in federal appeals. Respondent initially claimed that he was unaware that the Second Circuit had issued scheduling orders regarding briefing deadlines. During cross-examination, however, it was brought to respondent's attention that he had stipulated to receiving a scheduling order in a case he handled shortly after he began to practice before the Second Circuit. In response, respondent testified that he could not recall what he was aware of at that time with respect to the Second Circuit's practice of issuing scheduling orders. Respondent claimed that he did not come to realize that defaulting on petitions before the Second Circuit was an unacceptable strategy until a complaint was made against him; and that he mistakenly believed that cases in which he defaulted would remain on the court's docket. Respondent testified that he now realizes that he either has to move forward with a pending case or move to withdraw it.

In addressing his practicing before the Second Circuit without being admitted, respondent explained that he had been under the mistaken belief that his admission before the Southern and Eastern Districts entitled him to practice before the Second Circuit. ...


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