IP Attorney Disbarred For Insider Trading

By Jesse Greenspan, jesse.greenspan@portfoliomedia.com

Portfolio Media, New York (February 4, 2008)--An intellectual property attorney with San Francisco-based Dergosits & Noah LLP has been disbarred in the District of Columbia for insider trading, though the decision will not affect his California practice.

Malcolm B. Wittenberg, who formerly headed the IP practice group at Crosby Heafey Roach & May and was also a member of the Bar of the District of Columbia Court of Appeals, was disbarred Thursday by that court. He was previously disbarred in Virginia for similar reasons.

In their per curium decision, Judges Michael W. Farrell, Stephen H. Glickman and John M. Ferren said that D.C. code mandates disbarment upon a criminal conviction involving moral turpitude.

They added that the D.C. Bar Counsel and a Board on Professional Responsibility had both recommended disbarment and that Wittenberg had never filed a response to the Bar Counsel's submission.

“As we find support in the record for the board’s findings, we accept them, and we adopt the sanction the board recommended,” the court said.

Wittenberg, who is currently of counsel with Dergosits & Noah, did not immediately respond to a request for comment on Monday.

In 2001, Wittenberg pled guilty in the U.S. District Court for the Northern District of California 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 legal work for Forte, made a $14,000 profit, according to prosecutors.

U.S. District Judge William Alsup sentenced Wittenberg to serve a month at a halfway house and three months of home detention under electronic monitoring.

The judge also levied a $10,000 fine and ordered Wittenberg to explain his crime in speeches to 300 attorneys.

Based on this conviction, Virginia revoked Wittenberg's law license in March 2002.

Then, in 2003, California State Bar Court Judge Pat McElroy suspended Wittenberg's law license for three years and placed him on five years' probation.

State bar prosecutors appealed to the State Bar Court's review panel for complete disbarment. They 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.

But in November 2004, the appeal was rejected by the appellate panel, which upheld the lower court’s ruling.

“While we agree that the criminal violations were inexcusable for any attorney, particularly one in [Wittenberg's] position of experience and knowledge, we see no reason to change [the hearing judge's] previous decision that this crime is ineligible for summary disbarment,” the panel ruled.

A year later, the California Supreme Court also refused to disbar Wittenberg, who by that time had been reinstated from his suspension.

Wittenberg's old firm, Oakland, Calif.-based Crosby Heafey Roach & May, was acquired by Reed Smith LLP in 2003.