Malcolm B. Wittenberg was admitted to the California Bar 6th April 1977, but has since been disbarred. Malcolm graduated from George Washington University LS.

Lawyer Information

NameMalcolm B. Wittenberg
First Admitted6 April 1977 (47 years ago)
StatusDisbarred
Bar Number73842

Contact

Current Email[email protected]
Phone Number415-868-4072
Fax Number415-901-0320

Schools

Law SchoolGeorge Washington University LS (Washington DC)
Undergraduate SchoolWorcester Polytechnic Inst (Worcester MA)

Address

Current Address2312 Spanish Trail Rd
Tiburon, CA 94920
Map
Previous AddressBay Area Technology Law Group PC
2171 Francisco Blvd E Ste L
San Rafael, CA 94901
Previous AddressBay Area Technology Law Group PC
2312 Spanish Trail Rd.
Tiburon, CA 94920

History

28 May 2016Disbarred (7 years, 10 months ago)
Disbarment 12-O-18050
22 June 2014Not eligible to practice law in CA (9 years, 10 months ago)
Ordered inactive 12-O-18050
19 November 2013Disciplinary charges filed in State Bar Court 12-O-18050 (10 years, 5 months ago)
28 October 2005Active (18 years, 5 months ago)
15 July 2005Not eligible to practice law in CA (18 years, 9 months ago)
Discipline w/actual suspension 01-C-01358
30 November 2001Not eligible to practice law in CA (22 years, 4 months ago)
Interim suspension after conviction 01-C-01358
17 October 2001Conviction record transmitted to State Bar Court 01-C-01358 (22 years, 6 months ago)
6 April 1977Admitted to the State Bar of California (47 years ago)

Discipline Summaries

May 28, 2016

MALCOLM B. WITTENBERG [#73842], 70, of San Rafael, was disbarred May 28, 2016 and ordered to comply with rule 9.20 of the California Rules of Court.

A State Bar Court hearing judge recommended Wittenberg’s disbarment, finding him culpable of engaging in the unauthorized practice of law in 300 to 400 trademark matters before the U.S. Patent and Trademark Office. Wittenberg appealed, arguing among other things that he deserved a suspension because he acted in good faith. A three-judge review panel rejected Wittenberg’s claims.

In 2005, Wittenberg was suspended as the result of his felony conviction for insider trading. After his suspension ended, he never sought remittance to the USPTO yet practiced patent law from late 2005 to October 2012.

July 15, 2005

MALCOLM B. WITTENBERG [#73842], 59, of San Francisco was suspended for five years, stayed, placed on five years of probation with an actual three-year suspension and was ordered to take the MPRE and prove his rehabilitation. Credit will be given for the period of interim suspension that began Nov. 30, 2001. The order took effect July 15, 2005.

Wittenberg was convicted in 2001 of insider trading and the State Bar recommended his summary disbarment, which can be imposed if a crime is a felony involving moral turpitude. The State Bar Court’s review department declined to make such a recommendation and referred the matter to a hearing judge, who found that Wittenberg’s actions involved moral turpitude.

The bar again recommended summary disbarment. Failing that, it asked that Wittenberg be disbarred because of the seriousness of the crime. Wittenberg took issue with the moral turpitude finding, and the review department again declined to recommend his disbarment.

Wittenberg was a patent-trademark partner with Crosby, Heafey, Roach & May, representing Forte Software Inc. in 1999, when he learned from Forte’s general counsel that the company was to be acquired by Sun Microsystems. The same day, Wittenberg bought 1,000 shares of Forte and several days later bought another 1,000 shares. After the merger was announced, he sold his shares for a $14,000 profit that he later disgorged.

Wittenberg pleaded guilty to insider training as to the second purchase.

The review department declined to classify the conviction as moral turpitude, one of the requirements for summary disbarment. “When we classify a crime for moral turpitude purposes, we must do so according to its least adjudicated elements,” wrote Presiding Judge Ronald Stovitz. “Only if those elements involve moral turpitude as a matter of law may we classify the attorney’s conviction as one that involves moral turpitude.”

Further, he said, in the current case, the “agreed-upon elements of [Wittenberg’s] crime involved reckless or deliberate indifference. There is neither intentional dishonesty for personal gain nor any other element that would bring the conviction into the class of those involving moral turpitude per se.”

Nevertheless, the review judges did find that the facts and circumstances surrounding the conviction involved moral turpitude, and thus recommended the lengthy suspension. “What is clear about [Wittenberg’s] conduct,” Stovitz wrote, ”is that, as an experienced partner of an established law firm, and for personal profit, he intentionally took advantage of information that was not only not public, but came to him in the very process of his representation of his longstanding client, Forte.” He intentionally breached his fiduciary duty to his client to seek personal profit, was not candid during proceedings with the bar, and lied to an SEC attorney investigating the matter, Stovitz wrote, all actions that involve moral turpitude.

The hearing judge allowed mitigation for Wittenberg’s lengthy career and positive achievements in his practice and community.

The bar asked the Supreme Court to review the hearing department’s recommendation, but the petition was rejected.

November 30, 2001

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 stock deal.

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 Commission, 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 of probation.

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 term.

Wittenberg could face summary disbarment if the State Bar determines his crime involved moral turpitude. He will remain on interim suspension until the final disposition of the criminal proceedings.

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.