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A stream of veteran attorneys, longtime clients and co-workers testified they were stunned when ex- Crosby, Heafey, Roach & May partner Malcolm Wittenberg was convicted on insider trading and added that they still hold the attorney in high regard. “I would say he was the hardest working attorney I know, and I have known a lot of attorneys,” said Judy Cotham, a legal secretary who worked for Wittenberg for nine years of her 30-year career. Wittenberg, 56, could lose his license to practice law if State Bar Court Judge Patrice McElroy finds him guilty of moral turpitude. Wittenberg is currently working as a patent agent. In 2001 Wittenberg pleaded guilty to insider trading after investigators learned that he bought stock in Forte Software Inc. — a client — just before it was poised to merge with Sun Microsystems Inc.. State Bar prosecutors say someone involved in the merger told Wittenberg about it and Wittenberg bought Forte stock, making a $14,000 profit. He also told two friends about the deal who also purchased shares. On Wednesday, prosecutor Donald Steedman tried to prove that Wittenberg’s supporters either weren’t aware of the full extent of Wittenberg’s misconduct — or were willing to say just about anything to help him. In particular, he zeroed in on Cotham, whose testimony is being used to support Wittenberg’s claim that his judgment was impaired by the painkiller Percocet when he broke the law. According to Cotham, Wittenberg always billed his clients fairly, earned their loyalty, and worked six-day weeks. But shortly after Wittenberg returned to work after shoulder surgery, Cotham said, the normally alert lawyer would doze in his office and complain about lack of sleep. Once, she said, he dictated the same document to her twice. “I joked that he was losing it,” she said. Steedman questioned why Cotham — who was one of several people who wrote letters asking U.S. District Court Judge William Alsup to show Wittenberg leniency — made no mention in her letter that Wittenberg was acting unusual around the time of the crime. Cotham said that she focused on writing “from the heart” about Wittenberg’s character when she penned the letter. Glowing testimony about Wittenberg was given by Robert Eassa, an employment attorney at Oakland’s Filice Brown, Eassa & McLeod; Robert Sidell, a 17-year client who heads a Las Vegas cosmetics company; and Paul Warner, a partner in the San Francisco office of Jeffer, Mangels, Butler & Marmaro. The witnesses, called by defense attorney Doron Weinberg, said Wittenberg’s legal woes are merely one stain on a bright legal career. Steedman’s questioning seemed designed to prod Eassa into saying Wittenberg was dishonest, but the witness refused to use that word and instead credited Wittenberg’s continued advice with launching his own legal career. Sidell said Wittenberg kept his company legally “lily white in the trademark area.” “He is the best trademark and IP lawyer that I know,” said Warner. Wittenberg “was on a short list of one” when his clients needed a patent or trademark expert, he said. Warner said he was floored when he learned that Wittenberg has been indicted for insider trading. “I was flabbergasted that anyone would make an accusation of wrongdoing against Mal,” he said. Warner blamed what he characterized as soft ethics on the part of Crosby for Wittenberg’s actions. The civil litigator, who handles some SEC cases, testified that his firm, Jeffer, Mangels, has a “prophylactic” policy that bars lawyers from buying stock in a client unless they get permission from an internal committee. If Crosby had a tougher policy, Wittenberg would not have had any wiggle room to make a mistake, Warner said. But Steedman read from Crosby, Heafey’s ethics policy, which states that firm attorneys must consult with a risk management committee before buying stock in clients — a rule which Wittenberg violated when he bought Forte stock. “That is a prophylactic policy, is it not?” Steedman asked. The hearing continues today.

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