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Malcolm Wittenberg may soon be returning to the practice of law. Last week the California Supreme Court rejected the State Bar’s petition to have the former Crosby, Heafey, Roach & May partner disbarred. Wittenberg, an intellectual property attorney, was convicted of insider trading in 2001, and the State Bar Court suspended him for three years. State Bar prosecutors had argued that Wittenberg deserved harsher punishment. Three justices — Marvin Baxter, Kathryn Mickle Werdegar and Janice Rogers Brown — voted to review the case, one shy of the necessary majority. “We were very gratified and relieved by the news,” said Wittenberg’s attorney Doron Weinberg, of Weinberg & Wilder. “Malcolm is anxious to be an active lawyer again and do what he loves.” Wittenberg, who is working as a patent agent at Dergosits & Noah, could not be reached for comment. Wittenberg was once the head of the IP department at Oakland’s Crosby, Heafey, which merged with Reed Smith 2 1/2 years ago. He pleaded guilty to a felony charge of using inside information to obtain 2,000 shares of stock in Forte Software Inc. days before the company merged with Sun Microsystems Inc. Wittenberg, who had done some work for Forte, made a $14,000 profit. In 2001, a federal judge placed him on three years’ probation and fined him $10,000, despite prosecution recommendations that he get some jail time. Two years later, State Bar Court Judge Patrice McElroy ordered that Wittenberg be suspended for three years. That order was upheld by a three-judge review panel. “We’re a little disappointed that the Supreme Court didn’t accept review,” said Russell Weiner, State Bar deputy chief trial counsel. “At least some justices felt there were some issues that should be looked at.” The State Bar seeks Supreme Court review of disciplinary cases about five times a year, Weiner said. Since the professional State Bar Court was established in 1989, the court has granted review in about six cases, he said. Weinberg said his client will now apply for a hearing before the court to be reinstated. He must show he has been rehabilitated, has good moral character and a good knowledge of the law.

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