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NINTH CIRCUIT CHIEF JUDGE STANDS FIRM AGAINST SPLIT Ninth Circuit U.S. Court of Appeals Chief Judge Mary Schroeder isn’t letting the split talk get her down. “The state of the circuit is surprisingly good, all things considered,” Schroeder told the local Federal Bar Association last week at the group’s annual luncheon to honor judges. She pointed out that this year will mark the third anniversary of Newdow v. U.S. Congress, 292 F.3d 597, the Pledge of Allegiance case that sparked the latest effort by legislators to divide up the court. “I am pleased to say that both the republic and the Ninth Circuit remain intact,” Schroeder said. Like the majority of Ninth Circuit judges, she opposes legislative efforts to divide the circuit. Aside from the split, Schroeder listed other reasons to be stressed: budget cuts, threats to judicial security and the continuing crush of immigration cases. Even so, the chief took a hopeful tone, telling the crowd that packed into the Renaissance Parc 55 Hotel in San Francisco that the circuit is taking the lead in improving relations between politicians and the judiciary. She mentioned the visit to the circuit earlier this month by House Judiciary Committee Chairman James Sensenbrenner Jr., who favors splitting the court, and talked about her own recent trip to Washington, D.C. Schroeder remains hopeful that, instead of getting into a showdown over a split, judges and legislators are entering a “constructive phase” in which they can work together to solve problems. She admitted, though, that the relationship — as well as the public perception of the circuit, the largest and most derided in the United States — still has a ways to go. “I’ve done a lot of travel and talked to a lot of people. No one is interested in the subject of judicial administration, but everyone has an opinion about the Ninth Circuit,” Schroeder said. “And most of these are not based in reality.” — Jeff Chorney WITTENBERG IN STATE BAR CROSSHAIRS When it comes to whether to disbar Malcolm Wittenberg, State Bar lawyers are adhering to the saying, “If at first you don’t succeed, try, try again.” The State Bar recently petitioned the California Supreme Court, insisting that Wittenberg, a former Bay Area intellectual property star convicted of insider trading, deserves more than the three-year law practice suspension imposed by State Bar Court judges. Judge Patrice McElroy handed down that sentence in 2003, and a three-judge review panel upheld it in November. “The facts of this case cry out for disbarment,” State Bar Assistant General Counsel Jay Goldman wrote in the Supreme Court petition. “Here, [Wittenberg] engaged in extremely serious misconduct, where he abused his position as an attorney and eroded the confidence placed upon him by his client. At all times his actions were for purely personal gain.” In 2001, a federal judge sentenced Wittenberg — who headed the IP department of Oakland’s Crosby, Heafey, Roach & May (now Reed Smith) for five years — to three years’ probation and fined him $10,000. Wittenberg had pleaded guilty to using inside information to obtain 2,000 shares of stock in Forte Software Inc. days before the company merged with Sun Microsystems Inc. He made a $14,000 profit. State Bar prosecutors came after him next and subsequently found no satisfaction in the suspension handed down by McElroy and affirmed by the review panel. In his petition, Goldman argued that Wittenberg not only used a client’s confidential information for personal gain, but also lied to the Securities and Exchange Commission and lacked candor during his State Bar Court proceedings. “The State Bar,” he wrote, “takes seriously the damage that insider trading has caused to the free markets upon which our economy is based and the harm that [Wittenberg's] actions have inflicted upon the public perception of the legal profession.” Goldman said he couldn’t comment on a pending matter. But Wittenberg’s San Francisco lawyer, Doron Weinberg, expressed exasperation. “Every judge or court that has looked at [this case],” the Weinberg & Wilder partner said, “has agreed that when you compare [Wittenberg's] mistakes with his extraordinary overall record, the mitigation far outweighs. But the Bar refuses to accept this reality. “I continue to be surprised and disappointed by the Bar’s insistence to fight this battle.” Wittenberg, who’s in his mid-50s, has been working as a patent agent for San Francisco’s Dergosits & Noah. The case is In the Matter of Wittenberg, S130169. — Mike McKee CALLING ALL VOLUNTEER LAWYERS Community activists helping people shed their criminal records are having no trouble coming up with clients. What they need are attorneys. With as many as 500 people expected to attend the “expungement summit” Saturday at Laney College in Oakland — and only 20 attorneys on hand — the staff at the East Bay Community Law Center is getting nervous. Attorneys who can find time to volunteer need to attend a two-hour training session and show up during the summit to offer one-on-one consultations. Community law center attorney Tirien Steinbach said people are being locked out of jobs and housing opportunities for offenses that occurred years ago even though they could have their records legally expunged. “We’ve got a huge parolee and probation population here and really disorganized re-entry services,” Steinbach said. “Just a part of re-entry is trying to remove some of these legal barriers.” Organizers are hoping to have 50 attorneys on hand for a minimum of one attorney for every 10 people. Rep. Barbara Lee, D-Oakland, is spearheading the event, which runs from 9 a.m. to 5 p.m. Saturday. Organizers are making arrangements with the California Bar so attorneys can get MCLE credits for volunteering. For more information, call Kevin Gordon or Steinbach at (510) 548-4040 or visit www.ebclc.org. — Warren Lutz

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