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State Bar prosecutors, upset that convicted inside trader Malcolm Wittenberg was suspended from the practice of law for only three years, are back in court demanding nothing less than disbarment. In documents filed this month with the State Bar Court’s review department, prosecutors contend that Wittenberg got too light a punishment for a serious crime. They say that’s especially true considering that a federal judge also had been lenient in sentencing the former Crosby, Heafey, Roach & May partner to three years’ probation, one month in a halfway house and a $10,000 fine. “Summary disbarment is mandated,” State Bar Deputy Trial Counsel Donald Steedman wrote, “where ‘the offense is a felony � and an element of the offense is the specific intent to deceive, defraud, steal or make or suborn a false statement,’” or where the offense is a felony involving moral turpitude. Wittenberg declined comment, but his lawyer, Weinberg & Wilder partner Doron Weinberg, said Friday he is disappointed by the State Bar’s persistence. “Two judges have reviewed Mr. Wittenberg’s case and both found that his mistake was mitigated, that the things he has done, accomplished and contributed in his life significantly outweigh the mistake he made with insider trading,” Weinberg said. “But the Bar continues to relentlessly pursue disbarment on some imagined principle of discipline.” Wittenberg, a respected patent lawyer, pleaded guilty to using insider information to purchase 2,000 shares of stock in Forte Software Inc. days before the company announced a merger 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 went relatively easy on Wittenberg during sentencing in 2001, noting that he had a “stellar” record of community and professional service. In June of this year, State Bar Court Hearing Judge Pat McElroy rejected prosecutors’ request for disbarment and instead handed down five years’ probation and three years’ suspension. Deputy Trial Counsel Steedman couldn’t be reached for comment. But on appeal to the State Bar Court’s review department, he argues that disbarment is warranted because Wittenberg’s crime was a felony involving moral turpitude — described in case law as any crime or misconduct without excuse or any dishonest or immoral act. Steedman said Wittenberg exacerbated the situation by lying to investigators from the Securities and Exchange Commission and has shown no true regret, instead saying his actions were a “lapse of judgment” and “regrettable.” Wittenberg even admitted, Steedman wrote in his brief, that he had purchased stock of other clients in the past and considered buying Forte stock once before, but concluded he wouldn’t make enough money. “Thus, the evidence shows that [Wittenberg's] crimes were not aberrational,” Steedman wrote. “Instead, [he] was waiting for this opportunity. When the opportunity appeared, [he] grabbed it. Twice.” In addition, Steedman said, insider trading is a critical breach of a lawyer’s ethical duties and presents a danger to the public. It’s even more “insidious,” he wrote, than embezzling a client’s trust account. “Embezzlers typically claim that they always intended to repay the money, that it was merely a ‘loan,’” he wrote. “In contrast, [Wittenberg] intended to keep his gains and, given the sophistication of the crime, expected that his offense would never be uncovered.” Weinberg said Wittenberg, who has been suspended since his 2001 conviction, has been working as a patent agent for intellectual property firm Dergosits & Noah. Weinberg said the past two years have been rough on the 57-year-old lawyer and that he believes the State Bar is being unusually harsh on “one error of judgment” in a 31-year legal career. “I don’t think it’s personal,” he said. “The problem with it is they are not considering the individual. They are trying to make an example, and this is not a good case to make an example.”

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