A prominent northern California patent attorney
who pleaded guilty to insider trading last year was placed on interim
suspension by the State Bar Nov. 30. MALCOLM WITTENBERG [#73842],
55, of San Francisco was a longtime key member of Crosby Heafey
Roach & May's patent group when he was indicted on two counts of
insider trading and accused of making an illegal $14,000 profit on a
He represented Forte Software Inc., an Oakland
firm that merged with Sun Microsystems Inc. of Palo Alto in 1999.
After learning of the impending merger, prosecutors said, Wittenberg
bought 1,000 shares of Forte at a price of $13.50 a share. He later
bought 1,000 more shares at a price of $14.75 per share.
The day the merger was announced, the stock
closed at $21 per share, up 24 percent.
Wittenberg's Forte shares were converted to 600
shares of Sun. Less than a month later, he sold those shares, earning
a profit of about $14,000, the indictment charged.
As part of a plea agreement, Wittenberg pleaded
guilty to one count of insider trading and a second count was dropped.
He reached a separate agreement with the Securities and Exchange
Com-mission, paying $29,000 without admitting or denying any
allegations of wrongdoing.
Although Wittenberg faced up to 10 years in
prison and a $1 million fine on the single count of insider trading,
he was sentenced by U.S. District Judge William Alsup to three years
In a cracking voice, he told the judge,
"Standing here before you as a felon is as painful a situation I can
imagine. I am pained by the disappointment of my family and my
professional colleagues." He was ordered to serve a month at a
halfway house and three months of home detention with electronic
monitoring. Alsup also fined Wittenberg $10,000 and ordered him to
give speeches to other attorneys, explaining his crime.
The judge described Wittenberg's conduct as
"an aberrant act," said the profit was small and said the longtime
attorney had led a "stellar life."
Prosecutors had asked for a four-month prison
Wittenberg could face summary disbarment if the
State Bar deter-mines his crime involved moral turp-itude. He will
remain on interim suspension until the final disposition of the
During a nearly 30-year career, Wittenberg's
client list included Coca Cola Co., Levi Strauss & Co., Visa
International and Wells Fargo Bank. A former U.S. Patent and Trademark
Office patent examiner, he also clerked for a judge in the U.S. Court
of Customs and Patent Appeals in Washington, D.C.
He resigned from Crosby Heafey in August.