VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD





IN THE MATTER OF: )

)

Malcolm Bruce Wittenberg ) VSB Docket No. 02-000-2065





ORDER



THIS MATTER came before the Virginia State Bar Disciplinary Board for hearing pursuant to a Rule to Show Cause and Order of Suspension and Hearing entered January 25, 2002 (the "Order of Suspension"), requiring that Malcolm Bruce Wittenberg ("Respondent") appear before the Virginia State Bar Disciplinary Board (the "Board") in Hearing Room A at the Virginia Supreme Court, lst Floor, 100 Ninth Street, Richmond, Virginia, 23219, at 9:00 o'clock a.m., on February 22, 2002, to show cause why his license to practice law within the Commonwealth of Virginia should not be suspended or revoked based upon conviction of a "Crime", as defined by the Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.A. The official file in the Office of the Clerk of the Disciplinary System documents that the order of suspension, notice of the hearing and a copy of the criminal conviction order from the court entering same was served on Respondent at his address of record with the Virginia State Bar as required by Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.E(1) on January 25, 2002.

At 9:00 o'clock a.m., on February 22, 2002, a panel of the Board, consisting of William M. Moffet, Chair, Chester J. Cahoon, Jr., lay member, Bruce T. Clark, Joseph R. Lassiter, Jr. and Peter A. Dingman, was duly convened and, after other preliminary business, at 9:10 o'clock a.m., this case was called and each member of the panel was requested by the Chair to state whether he was aware of any personal or financial interest which would affect or reasonably be perceived to affect his ability to be impartial in this case. Each member of the panel, including the Chair, responded in the negative. Respondent not being present, the Clerk called his name three times in the hallway adjacent to the Courtroom. Respondent failed to respond or to appear. The Virginia State Bar (the "Bar") appeared and was represented by Charlotte P. Hodges, Assistant Bar Counsel. The Bar then moved into evidence three exhibits consisting of an indictment of Respondent for insider trading violations, a sentencing memorandum and a judgment of conviction (the "Judgment"), all filed in the United States District Court for the Northern District of California, San Francisco Division (the "Court"), in a case styled United States of America v. Malcolm B. Wittenberg, Case No. CR01-0157 WHA. These three exhibits were admitted without objection. The Judgment shows that Respondent pled guilty and was found guilty of violating Title15, United States Code, Sections 78j(b) and 78ff, and Title 17, Code of Federal Regulations, Sections 240.10b-5.

Upon this record, the Board finds that the Bar has proven by clear and convincing evidence that Respondent has been convicted of a "Crime" as defined by Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.A.

It is accordingly, ORDERED that, pursuant to Part 6, Section IV, Paragraph 13.E(2) of the Rules of the Supreme Court of Virginia, the license of Malcolm Bruce Wittenberg to practice law in the Commonwealth of Virginia be, and the same hereby is, REVOKED effective February 22,2002.

It is FURTHER ORDERED that, as directed in the Board's February 22, 2002 Summary Order in this matter, a copy of which was served on Respondent by certified mail, Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13.K(1), of the Rules of the Supreme Court of Virginia. The time for compliance with said requirements runs from the February 22, 2002 effective date of the Summary Order. All issues concerning the adequacy of the notice and arrangements required by the Summary Order shall be determined by the Board.

It is FURTHER ORDERED that the Clerk of the Disciplinary System shall send an attested and true copy of this Order to Respondent by certified mail, return receipt requested, at his address of record with the Virginia State Bar, 1999 Harrison Street, Oakland, California, 94612, and to Charlotte P. Hodges, Assistant Bar Counsel, 707 East Main Street, Suite 1500, Richmond, Virginia, 23219-2800.

The proceedings in this matter were reported by Leslie Etheredge, 4444 Arrowhead Road, Richmond, Virginia, 23225; telephone number (804) 272-7054.

The Clerk of the Disciplinary System shall assess costs pursuant to Rules of the Supreme Court, Part 6, Section IV, Paragraph 13.K(10).

So ordered this ______ day of March, 2002.



VIRGINIA STATE BAR DISCIPLINARY BOARD



By: ___________________________________________

William M. Moffet, Chair.