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Attorney Malcolm Wittenberg testified Tuesday that he realized his career was on the line when he got a call two years ago from Securities and Exchange Commission investigators. “I was visibly shaken,” said Wittenberg, a former partner with Oakland, Calif.’s Crosby, Heafey, Roach & May. Dressed in a gray suit, with his handlebar moustache neatly groomed, the patent attorney added, “I saw my life go before me.” It was clear on Tuesday that the fate of Wittenberg’s 30-year legal career hangs on how State Bar Court Judge Patrice McElroy interprets two words: moral turpitude. Two years ago, Wittenberg found out that one of his clients, Forte Software Inc., was poised to merge with Sun Microsystems Inc., and he used the tip to make a $14,000 profit in the stock market. Eventually the 56-year-old was convicted of insider trading, paid a $10,000 fine and was sentenced to three years’ probation. Today, the attorney is a patent agent at San Francisco’s Dergosits & Noah. If McElroy determines that Wittenberg’s crime involved a moral breach, he can be disbarred. The hearing, which continues through today, was characterized by tension from start to finish. Defense attorney Doron Weinberg and State Bar prosecutor Donald Steedman frequently objected to questions before the other could finish talking, and Wittenberg carefully phrased his answers to avoid appearing to agree with the premise of Steedman’s questions. McElroy grew visibly exasperated and repeatedly asked the attorneys to “ask a question and get on with it.” Last year, State Bar attorneys tried to get Wittenberg summarily disbarred, arguing that the attorney was guilty of moral turpitude because he willfully committed a felony and intended to defraud. State Bar Court Presiding Judge Ronald Stovitz ordered a hearing, saying it was an open question whether Wittenberg’s crime constituted moral turpitude per se. Wittenberg’s attorneys have argued that insider trading isn’t a moral breach in and of itself. Plus, they say, the crime was an aberration in a long, ethical career. Percocet, a painkiller that he was taking at the time, impaired Wittenberg’s judgment, they argue in court papers. While the trial counsel wants to boot Wittenberg from the bar, the former Crosby Heafey partner’s lawyers hope that he will be able to salvage his legal career. On Tuesday, Wittenberg testified that he got a call from a Wilson Sonsini Goodrich & Rosati lawyer requesting a Forte file in August 1999, but denied that he was told by that lawyer about a merger. He said he eventually learned about a merger and decided to add more to the 1,000 Forte shares he already owned. Wittenberg testified that he had been following Forte’s fortunes for years and had read merger rumors on Internet message boards long before merger lawyers told him that a deal was imminent. During his opening argument, Weinberg of San Francisco’s Weinberg & Wilder, asked that his client be permitted to practice law. “He should have not made the trade,” Weinberg said. “He accepts what he pleaded guilty to. He does not shrink from that at all.” Steedman argued that Wittenberg lied to SEC investigators, and that he didn’t reveal his prescription use until long after the criminal case was over. “It is our position that Mr. Wittenberg committed a serious felony,” Steedman said. During a contentious cross-examination, Wittenberg said that he continued to work and to bill hours while he was medicated. Steedman said that if Wittenberg was prescribed 50 Percocet tablets as he testified, he would have run out of the drug before he bought the Forte stocks. Steedman also noted that Wittenberg had been booted from the Virginia Bar after the organization discovered that Wittenberg had been convicted of insider trading. Wittenberg responded that he thought his membership had lapsed when he found out his Virginia Bar card was in jeopardy, and added that he decided not to fight it because his “fortunes lie in this proceeding.” Early on, barbs flew when SEC attorney Carolyn Samiere testified that phone records indicate Wittenberg received several calls which could have given him information about the merger. Steedman complained that Weinberg was trying to “trap” Samiere during his cross-examination. “Trapped?” McElroy asked incredulously, noting that Samiere even brought her own attorney to court. “She’s an attorney.” Weinberg reminded Samiere that she was under oath, to which Steedman responded with a heated objection. “I have,” Samiere said, glaring at Weinberg, “told the truth here.”

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