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State Bar Court Judge Patrice McElroy appeared Thursday to be considering a punishment short of disbarment for an ex-Crosby, Heafey, Roach & May attorney who pleaded guilty to insider trading. If McElroy rules that 56-year-old Malcolm Wittenberg committed an act of moral turpitude, his 30-year legal career could end in disbarment. On the closing day of a three-day hearing, the judge told attorneys which issues to tackle in their final briefs, and asked, “Does the court have the right not to disbar even if there is moral turpitude?” Once the final written arguments are in, the judge is expected to issue a decision in the spring. In 2001, the patent attorney admitted he bought 2,000 shares of stock in his client, Forte Software Inc., after someone involved in the merger told him that Forte would merge with Sun Microsystems Inc. Wittenberg told two friends about it, and they also bought Forte stock. A federal judge gave Wittenberg — who could have received prison time — three years’ probation, a $10,000 fine, and ordered him to speak to lawyers about his crime. Wittenberg, who is now a patent agent at San Francisco’s Dergosits & Noah, was forced to resign from Crosby, Heafey and was booted from the Virginia bar after he was convicted. Wittenberg said he didn’t fight the Virginia disbarment because he’s focused on keeping his California license. On Thursday, McElroy said she was considering a broad range of disciplinary options. She asked the attorneys to explain in their briefs which deeds constituted moral turpitude. She also asked them whether an aberrant behavior — how Wittenberg’s attorney Doron Weinberg has characterized the crime — could be classified as moral turpitude. “The court is interested in what discipline is given [for insider trading],” McElroy said. Weinberg, of San Francisco’s Weinberg & Wilder, wants his client to get an 18-month suspension. If that happens, Wittenberg will get credit for his existing suspension, which began during the State Bar investigation. He could begin practicing after the case is over. Prosecutors want Wittenberg disbarred. During this week’s hearing, Weinberg sought to show that the felony conviction was a slip-up in an otherwise illustrious career. He called attorneys and clients who extolled the George Washington University Law School graduate’s legal acumen and ethics. Donald Steedman, the bar’s prosecutor, called to the stand an SEC attorney who said Wittenberg had several phone conversations that could have tipped him off to the merger before he made the stock deal. Part of Wittenberg’s defense was that the Internet was rife with rumors — including that a merger was imminent. But Steedman said Wittenberg wouldn’t have had any reason to find that rumor more significant than the others unless he had inside knowledge. Weinberg also tried to show that at the time of the crime, Wittenberg was recuperating from rotator cuff surgery and was taking Percocet, a painkiller that impaired his judgment. Wittenberg’s longtime legal secretary testified that her normally alert boss dozed at his desk and once dictated the same document to her twice after the operation. In court papers, Steedman has implied that the Percocet defense was cooked up after the criminal investigation began. In June 2000 Wittenberg asked his orthopedic surgeon, Michael Stock, to write a note to his lawyer, which was later used to support Wittenberg’s claim that his judgment was impaired. Before that, Percocet was not one of the drugs mentioned on his patient chart, Steedman argued in briefs. On Thursday, Steedman and Weinberg grilled Stock, whose testimony provided nuggets that were helpful to both sides. During Steedman’s direct examination, Stock said he didn’t recall any pain complaints during post-surgery exams. The chart doesn’t show that Wittenberg didn’t asked for more painkillers after his first prescription ran out and it doesn’t say he was in pain, Stock said. But during Weinberg’s cross-examination, Stock said Wittenberg told his physical therapist he was in pain. Occasionally Stock’s staff fails to put copies of prescription in the patient’s chart, the doctor said. Later, the attorneys questioned Sayed Darwish, Forte’s former general counsel and vice president. Darwish said he called Wittenberg in August 1999 to ask him to cooperate with Sun’s lawyers, who were doing merger due diligence. During Weinberg’s cross-examination, Darwish said he couldn’t recall details of his chat with Wittenberg, because he made up to 30 phone calls a day. When the prosecutor questioned him again, Darwish testified that Wittenberg’s call stood out because it was extremely important. Forte’s patents — which Wittenberg worked on — were the reason for the merger in the first place. Final briefs from both sides are due March 7, and McElroy will issue a decision within 90 days after that. No matter which side prevails, a decision will probably be appealed to the bar court’s Review Department.

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