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When it comes to whether to disbar Malcolm Wittenberg, California 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 San Francisco 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.

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