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Going for the sympathy vote on Wednesday, San Francisco attorney Doron Weinberg told three State Bar Court judges that his client, Malcolm Wittenberg, simply didn’t deserve disbarment. Wittenberg, a former IP ace convicted of insider trading in 2001, had been a stellar attorney for more than 30 years, Weinberg said. He had been a partner in one of the Bay Area’s top firms, had rubbed shoulders with the region’s legal elite and was well known for his dedication to public service. “Here we have a man whose personal life and professional life have been an open book,” Weinberg argued. “An isolated moment of misjudgment,” he said, shouldn’t warrant disbarment rather than the three-year suspension recommended by another State Bar judge last year. It was an argument aimed at establishing Wittenberg’s credibility and respectability. But the ploy may have backfired. “Don’t those factors also go in a different direction?” Judge Ronald Stovitz asked. “Doesn’t that imbue that person with the knowledge and duty to avoid criminal prosecution? Isn’t that a situation where the mitigating factors don’t weigh as heavily — where one is a senior partner in a firm and uses information involving firm clients?” Stovitz’s comment doesn’t necessarily mean that Wittenberg is in further trouble. But it shows that Stovitz and fellow State Bar Court Judges Robert Talcott and Madge Watai remain disturbed by Wittenberg’s crime. Wittenberg, who headed up Crosby, Heafey, Roach & May’s IP department for five years, 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. Wittenberg, who had done some work for Forte, made a $14,000 profit. A federal judge sentenced Wittenberg to three years’ probation, one month in a halfway house and a $10,000 fine. Last year, State Bar Court Judge Pat McElroy suspended Wittenberg’s law license for three years and placed him on five years’ probation. Arguing that Wittenberg got off easy, State Bar prosecutors appealed to the State Bar Court’s review panel for complete disbarment. Each side got 30 minutes on Wednesday to argue its case. State Bar Deputy Trial Counsel Donald Steedman argued that Wittenberg’s use of confidential client information and lying to the Securities and Exchange Commission was a felony of moral turpitude per se — in other words, a crime or misconduct without excuse. At one point, Judge Stovitz asked Steedman whether the California Supreme Court’s 1989 ruling in another insider trading case, Chadwick v. State Bar of California, 49 Cal.3d 103, was controlling. Steedman said it was on point because the defendant in that case, William Chadwick, was suspended after lying to the SEC, but that the State Bar Court had said it would have recommended disbarment, instead, if Chadwick hadn’t taken steps to rectify his misconduct. In the current case, Steedman noted, Wittenberg had tried to conceal his criminal activity. “Here we have no real recognition [by Wittenberg] of wrongdoing,” Steedman said. “He says he’ll do whatever he needs to do for expediency, for the purpose of getting his license back and showing no real remorse.” Weinberg, a partner in Weinberg & Wilder, pointed out that Chadwick was ultimately suspended for only a year after making bigger illegal profits than Wittenberg. But Judge Talcott quickly noted that Chadwick faced a misdemeanor violation, as opposed to Wittenberg’s felony. Weinberg said the bottom line is that Wittenberg is ready to take his lumps. He just doesn’t want to be run out of the law. “We have never suggested that the suspension recommendation was not appropriate,” Weinberg said. “It is acceptable to Mr. Wittenberg as a sentence he would suffer. There is no reason to exceed that recommendation.” He also stated that disbarment for Wittenberg would set a precedent. “No lawyer has ever been disbarred in California for insider trading,” he said. After the hourlong session, Weinberg wouldn’t predict the outcome and said his client, whose wife had accompanied him to the hearing, would not have anything to say. But Weinberg reiterated that he felt Judge McElroy’s recommendation for suspension was a “fair and just one” that should be upheld by the review panel. If the State Bar Court were to rule for disbarment, the decision would go before the state Supreme Court for review. Wittenberg currently works as a patent agent for Dergosits & Noah, a San Francisco IP firm. The case is In the Matter of Wittenberg, 01-C-01358.

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