Case Number(s): 09-C-10197-3
In the Matter of: Robert C. Fishman, Bar # 110630 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Donald R. Steedman
180 Howard Street, 7th Floor
San Francisco, CA 94015
Bar # 104927,
Counsel for Respondent: In Pro Per Respondent
Robert C. Fishman
5709 Hempstead Drive
Agoura Hills, CA 91301
Bar # 110630
Submitted to: Assigned Judge, State Bar Court Clerk’s Office Los Angeles
Filed: October 21, 2010
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 12, 1983
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 8 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Costs are awarded to the State Bar.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
9. ORDER OF INACTIVE ENROLLMENT: The parties are aware that if this stipulation is approved, the judge will issue an order of inactive enrollment under Business and Professions Code section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule 5.111(D)(1).
1. Respondent has no prior record of discipline and has been admitted to practice since 1983.
2. During the period in question, respondent was experiencing personal problems relating (1) financial matters, (2) the care of his sick and elderly parents, and (3) a dispute with his parent’s care provider.
IN THE MATTER OF: Robert C. Fishman, State Bar No. 110630
STATE BAR COURT CASE NUMBER: ET AL. 09-C-10197
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(6), was September 24, 2010.
FACTS AND CONCLUSIONS OF LAW
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
FACTS
1. On December 29, 2004, Respondent registered with Yahoo under a fictitious name. Respondent’s originating Internet Protocol (IP) address was 64.81.84.186
2. Between December 2004 and August 2007, Respondent maintained two email addresses from which he accessed Yahoo! Groups.
3. On August 11, 2005, Respondent posted 4 image photos ("jpg files") containing child pornography on a
Yahoo! Group.
4. On October 3, 2006, Respondent uploaded 29 jpg files containing child pornography on a Yahoo Group. For purposes of this stipulation, child pornography includes depictions of pre-pubescent children engaging in sexual acts including genital penetration.
5. On March 21, 2007, Respondent uploaded 3 jpg files containing child pornography and 2 jpg files containing child erotica on a Yahoo Group.
6. In July 2007, the Los Angeles Regional Internet Crimes Against Children Task Force ("LAICAC") obtained the billing information related to the IP address 64.81.84.186. The billing address was that of the law office at which respondent was employed. LAICAC provided the law firm with the e-mail addresses used by Respondent. Subsequently, an activity-monitoring software installed on the firm’s web sewer conclusively indentified Robert C. Fishman as LAICAC suspect.
7. On August 2, 2007, Officers of LAPD Juvenile Division obtained and executed a search warrant at Respondent’s family home.
8. When made aware that the LAPD believe that some member of this household was viewing, downloading, uploading, and exchanging of child pornography, Respondent responded, "It’s me and nobody else". Respondent directed the search to the computer in the home office.
Respondent also indicated that there would likely be evidence of child pornography on the other computers in the house. Respondent additionally indicated that he collected printed material or DVDs which he kept in an unlocked briefcase in the trunk of his car. He directed the detectives to the location of his keys.
9. The detectives opened the trunk of Respondent’s car and discovered a black nylon briefcase. The briefcase contained two hundred and fifteen (215) 8 1/2 by 11 inch printed images, many of which depicted images that constitute child pornography as defined by PC 311. Also within the briefcase was, one metal pipe and two glass pipes containing white residue.
10. A second black briefcase was discovered behind the driver’s seat. It contained an additional ninety two (92) 8 1/2 x 11 printed images containing a mix of child erotica and child pornography.
11. On August 2, 2007, Respondent was placed under arrest. Respondent’s home computer and an attached hard drive were retained by the Special Master.
12. LAICAC also conducted a forensic examination of the desktop computer on Respondent’s desk at the law offices at which respondent was employed, and the hard drive was retained by the Special Master.
13. A post-arrest review of the property recovered from Respondent’s residence and work address was determined to constitute child pornography contraband as follows:
92 color and black/white photos of child pornography, found in the black briefcase located on rear-driver side floor of Respondent’s automobile;
215 color and black/white photos of child pornography, found in the black briefcase located in the trunk of Respondent’s automobile; and,
23 of the 27 CDR’s, found in the briefcase located in the trunk of Respondent’s car, contained 255 videos of child pornography.
14. Between March and July 2007, Respondent actively communicated with others regarding images of child pornography, posting, transmitting and exchanging images. In his email of April 20, 2007, Respondent baited for companionship by offering to share drugs.
15. On October 14, 2008, a criminal complaint was filed against Respondent in the Superior Court of California, County of Los Angeles, in the matter entitled People v. Robert Fishman, case no. BA335615, charging R with seven felony counts as follows:
Count One: Distribution of child pornography on August 11, 2005, in violation of PC 311.1(a);
Count Two: Distribution of child pornography on October 2, 2006, in violation of PC 311.1(a);
Count Three: Distribution of child pornography on March 21, 2007, in violation of PC 311.1(a);
Counts Four, Five, Six, and Seven: Possession of matter depicting minor engaging in sexual conduct on August 2, 2007, in violation of PC 311.1(a).
16. On December 19, 2008, Respondent entered a plea of nolo contendere to two counts of possession of child pornography in violation of Penal Code section 311.11(a), felonies. That same day, the Court accepted Respondent’s plea, and Respondent was convicted.
17. Subsequent to his conviction, Respondent failed to report it to the State Bar.
18. On March 13, 2009, the Court suspended imposition of sentence and placed Respondent on formal probation for five years on terms and conditions that require 90 days in jail or electronic monitoring in lieu of jail, completion of a 52-week sexual offender counseling program, attendance at narcotics anonymous meetings, no access to the internet, except for emplQyment purposes, pay various fines; and register as a sex offender [a lifetime requirement.]
CONCLUSIONS OF LAW
19. The facts and circumstances surrounding Respondent’s conviction for two felony counts of violation of Penal Code section 311.11(a), POSSESSION OR CONTROL OF CHILD PORNOGRAPHY, in that Respondent did knowingly and unlawfully possess matter, representation of information, data, or image, including, but not limited to, computer-generated image, the production of which involved the use of a person under the age of 18 years, knowing that the matter depicted a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in Penal Code section 311.4(d), do involve moral turpitude, and constitute other misconduct warranting discipline pursuant to Business and Professions Code sections 6101 and 6102.
20. By distributing child pornography on August 11, 2005, Respondent committed an act of moral turpitude, in violation of Business and Professions Code section 6106.
21. By distributing child pornography on October 3, 2006, Respondent committed an act of moral turpitude, in violation of Business and Professions Code section 6106.
22. By distributing child pornography on March 21, 2007, Respondent committed moral turpitude, in violation of Business and Professions Code section 6106.
23. By failing to provide a written report of his conviction to the State Bar, Respondent violated Business and Professions Code section 6068(o).
AGGRAVATING CIRCUMSTANCES (page 2):
B(2) DISHONESTY AND CONCEALMENT:
For a period of three years, Respondent shielded himself and his misconduct from Law Enforcement by using a fictitious name. In addition, respondent used the privacy afforded by his private law office to view, chat, share, and distribute child pornography.
B(4) HARM:
By knowingly collecting and trading child pornography, Respondent stimulated the market for illegal child pornography, thus causing harm to society and children. By knowingly trading child pornography with other perpetrators, Respondent encouraged and facilitated their illegal conduct, thus causing further harm to society and children.
B(7) PATTERN OF MISCONDUCT
In addition to the hundreds of images and videos of children in suggestive, nude or pornographic activities, that he knowingly possessed on his computers or kept locked in his car, Respondent engaged in the receipt and distribution of images of child pornography in numerous emails with other Internet users.
Forensic analysis of his computers and photos found in his car revealed how, over at least three years, Respondent has been collecting pornographic images depicting children in suggestive, nude or pornographic activities.
Case Number(s): 09-C-10197
In the Matter of: Robert C. Fishman
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by: Robert C. Fishman, Donald R. Steedman
Respondent: Robert C. Fishman
Date: 10/7/2010
Respondent’s Counsel: N/A
Date: N/A
Deputy Trial Counsel: Donald R, Steedman
Date: 10/12/2010
Case Number(s): 09-C-10197
In the Matter of: Robert C. Fishman
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Respondent Robert C. Fishman is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herein, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by: Donald F. Miles
Judge of the State Bar Court: Donald F. Miles
Date: 10/20/2010
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and
County of Los Angeles, on, October 21, 2010, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
ROBERT C. FISHMAN
5709 HEMPSTEAD DR
AGOURA HILLS, CA 91301
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
DONALD STEEDMAN, ESQ., Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in Los Angeles California, on October 21, 2010.
Signed by: Rose Luthi
Case Administrator: Rose Luthi
State Bar Court