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Sentenced to three years’ probation in December 2001 on a charge of insider trading, former Crosby, Heafey, Roach & May partner Malcolm Wittenberg now goes to another court in hope of avoiding banishment from the practice of law altogether. For three days next week, Wittenberg, currently working as a patent agent for the intellectual property firm of Dergosits & Noah, will appear in State Bar Court in San Francisco to fight disbarment, which would end his 30-year legal career. Wittenberg, 56, couldn’t be reached for comment. However, in court papers he doesn’t deny he should be disciplined for misconduct, arguing only that disbarment would be too harsh and that a more deserving punishment would be suspension from the law for no more than 18 months. Wittenberg’s attorney, Doron Weinberg, wrote that his client’s crime was “an instance of aberrant behavior” that shouldn’t ruin his life forever. “If you talk to anyone who knows him, you’ll hear uniformly that this was not Mal Wittenberg,” the Weinberg & Wilder partner said in a telephone interview last week. “This was a lapse that was totally out of character, and he should not get the equivalent of a legal death sentence.” Wittenberg, a 1972 honors graduate from the National Law Center at George Washington University Law School and a highly respected patent lawyer at Oakland’s Crosby, Heafey, Roach & May at the time of his downfall, was convicted and sentenced in 2001 after pleading guilty to using insider information to purchase 2,000 shares of stock in Forte Software Inc. days before the company merged with Sun Microsystems Inc. Wittenberg, who had done some legal work for Forte over the years, made a profit of about $14,000. U.S. District Judge William Alsup sentenced Wittenberg to probation, fined him $10,000 and ordered him to speak to 300 lawyers about his misconduct within a year. Alsup was lenient, noting that Wittenberg had a “stellar” record of community and professional service before this incident. The State Bar isn’t being as accommodating. Deputy Trial Counsel Donald Steedman insists that Wittenberg’s conduct was a felony that involved moral turpitude per se and a specific intent to defraud — two grounds for automatic, or summary, disbarment under State Bar rules. Crimes of moral turpitude are defined as conduct contrary to justice, honesty or morality and usually involve offenses such as fraud or breach of trust. Early last year, Steedman sought summary disbarment, which would have dispensed with the need for a full court hearing, by arguing that Wittenberg’s offense was willful and that he could not have been convicted without a finding that he acted with fraudulent intent. “That mental state is sufficient for a finding of moral turpitude,” Steedman wrote in court papers, “and the California Supreme Court has so ruled” in another case. State Bar Court Presiding Judge Ronald Stovitz denied Steedman’s request for summary disbarment and ruled that Wittenberg’s crime “may or may not” involve moral turpitude. Whether it does or doesn’t is a decision that will be made by Judge Patrice McElroy, who will preside over next week’s hearing on Tuesday, Wednesday and Thursday. “The fundamental issue,” Weinberg said, “is whether insider trading is a crime of moral turpitude per se — that in each and every case, no matter what the circumstances, it is moral turpitude and warrants disbarment.” Weinberg, who’s handling the case along with solo practitioner Jerome Fishkin, a former State Bar prosecutor, said there are mitigating factors for Wittenberg that eliminate moral turpitude problems in his case: He has had a remarkable legal career with high ethical standards, his illicit stock deals were “just a low-grade instance of the offense of insider trading” and he was in great pain and heavily medicated on Percocet when he went off the straight and narrow path. “He had orthopedic surgery. He was on medication,” Weinberg said. “He was distracted, unfocused for a brief period of time, and his condition affected [his] judgment in deciding to purchase stock.” State Bar prosecutors aren’t sympathetic. Deputy Trial Counsel Esther Rogers, who assisted in the preparation of Wittenberg’s trial, said Monday that prosecutors still think Wittenberg should have suffered summary disbarment. “We consider [insider trading] very serious,” she said, “in the [degree of] trust that’s placed in the attorney, and the ethical obligations the attorney has, and the fact the attorney used this for personal gain.” Rogers said the case should be easy to prove, because prosecutors can rely on the conviction where Wittenberg pleaded guilty, and in their belief that there are aggravating factors that outweigh any mitigating factors. In court papers, Steedman pointed out that Wittenberg, when first confronted by investigators from the Securities and Exchange Commission, lied about having advance information about the merger of Forte and Sun Microsystems, and that, despite Wittenberg’s arguments that he had impaired judgment at the time, his work at Crosby wasn’t affected. “He made a decent living,” Rogers said, “and from what we can tell there was no difference in his ability to function at work.” In addition, Steedman noted in court papers, Michael Stock, Wittenberg’s doctor, didn’t mention any adverse post-surgery complications in his medical reports. “Dr. Stock also does not remember [Wittenberg] displaying impaired judgment during the relevant time period,” Steedman wrote in a pretrial statement. Stock is one of several prosecution witnesses who will testify during the three-day hearing. Another is Sayed Darwish, the Forte vice president who allegedly told Wittenberg about the merger when he called Wittenberg and asked him to forward his Forte legal files to Wilson, Sonsini, Goodrich & Rosati, the firm that represented Sun Microsystems. Defense witnesses include several of Wittenberg’s friends and co-workers, who will testify about his honesty, work ethic and overall moral character. Weinberg said the judge will have a “pure legal question” to resolve. “It’s a novel kind of question, because the legal standard in the State Bar has changed several times over the years,” he said. “There was a time when moral turpitude was not the test. Now moral turpitude is the test.” Precedent could favor Wittenberg. According to documents obtained by Weinberg from the State Bar, attorneys convicted of insider trading came up on discipline charges four times between 1971 and 1996. In all four, the conviction was characterized as a crime that may or may not involve moral turpitude: One of the lawyers resigned from practicing law, another was given 30 months’ probation and a third was privately reproved. Charges against the fourth were dismissed after prosecutors found no evidence of moral turpitude. Weinberg remains hopeful that his client will not suffer the ultimate punishment of disbarment. “[Wittenberg] anticipates,” Weinberg said in court documents, “that the evidence to be adduced at the hearing will demonstrate that the facts and circumstances surrounding his criminal offense do not involve moral turpitude, but rather involve only misconduct warranting discipline. “[He] believes that the evidence will demonstrate that the offense was an instance of aberrant behavior, and not at all indicative of his personal and professional character.” The case is In the Matter of Wittenberg, 01-C-01358.

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