January 28, 2003
DISSENT OF MEMBER RUDNITSKY:
I dissent on two grounds. First, contrary to the board majority on 48 D.B. 2000, I would have found the petitioner’s expert testimony to be compelling and consistent with other substantial evidence. Thus, the respondent engaged in a massive document fabrication to substantiate his false testimony, and I recommend disbarment. Second, while I join with the majority in finding yet another client neglect on 22 D.B. 2000,1 recommend the sanction of suspension of law practice for a year and a day.
No. 22 D.B. 1999
From 1986 to 1997, respondent engaged in a pattern of behavior where he accepted retainers in client matters, failed to proceed on them to the prejudice of his clients, and then misrepresented the facts to the client in an effort to cover up his neglects. In our disciplinary system, he has progressed from an informal admonition, to a private reprimand, to a three-month suspension, to bring him to the most recent client neglect. On these findings alone, the Hearing Committee recommended a six-month suspension and the board majority a nine-month suspension.
Reputation is what people say about you. Character is what you really are. In this case, the respondent has either failed to learn from the previous sanctions or is incapable of changing his behavior. Both the Hearing Committee and the board majority were impressed with the respondent’s long list of character witnesses. Respect*347fully, I disagree that this mitigation is sufficient to remove this case from that sanction which requires him to demonstrate that he has the requisite character to practice law. His behavior over the years more clearly shows who he is than the reputation evidence he has put forth.
No. 48 D.B. 2000
While defending himself in 22 D.B. 1999, respondent produced four letters and documents purporting to show that he communicated in writing to his clients that he felt that there were no grounds to support the appeal. These documents were successfully used by the respondent in defending himself in the civil case brought by the client against the respondent.
The three letters and one bill to the client were shown to the client and his wife. They said they had never seen them before. Office of Disciplinary Council hired Peter Tytell, a forensic document examiner, who prepared a report dated August 6,1999, that concluded that the three letters and one bill were not consistent with the typeface and the telephone area code used on all of the other documents and paperwork in that client’s case, nor were they consistent with the filings and documents used in other cases that respondent had in 1994 and 1995. The telephone area code had been changed from 215 to 610 by the telephone company and the paperwork submitted in this case contained the 610 area code and a typeface different than the typeface and area code used on the other paperwork in the client’s case. A copy of this report was supplied by petitioner to the respondent in August 1999.
The next hearing was scheduled for October 28,1999. Three days prior to that date, respondent supplied copies of 14 letters to petitioner to demonstrate that he was us*348ing the same typeface and the 610 area code on occasion in 1994 and 1995 in other matters. Petitioner commenced an investigation of these 14 letters by contacting the addressees to get possession of the original letters.
Only one original letter was able to be obtained. It was the letter to Attorney Narlesky. There were startling differences between the original letter and the purported copy offered by the respondent. The original letter was printed with a different type font and a different letterhead. It also had a different telephone area code. One could well ask why the investigator could not get originals from the clients of the respondent. Perhaps they discarded them. However, we noted with great interest the testimony of the respondent’s secretary in this regard. She testified that she was contacting former clients of the respondent to announce the formal closing of their files. As a part of this process, she requested that the file in the possession of the clients be returned to her. In at least one case, the client faxed a copy of the file to the respondent’s secretary and was told that the original file was needed. They gave it to the respondent’s secretary, and never got it back. This is both an unprecedented and inexplicable way to close an office file. It is no wonder that this unusual factual background led petitioner to suspect that the respondent was inhibiting the investigation and tampering with evidence.
A new DB-7 was issued asserting that the respondent had fabricated the three letters and the bill used in the civil defense of the lawsuit of the Freytiz matter. The second petition also alleged the fabrication of the Nar-lesky letter. This DB-7 was issued on April 20, 2000. Six months later, the respondent provided petitioner with 10 more letters which purported to show that respondent *349was using the same type font and area code in other cases through 1994 and 1995 as he provided in the three letters and one bill. In comparison to the 14 letters submitted earlier where only one original could be located, all of the originals were available this time. They were sent to a forensic chemist for analysis.
Eric J. Speckin, a chemist who has testified in both state and federal courts, examined the six letters and four bills comprising the 10 documents. The chemist concluded that only four letters had intact signatures. The others had signatures that had been intentionally erased. In our experience, recipients do not normally erase the signatures on original letters received by them.
The chemist used a relative ink age determination test. He testified that ink dries in three and a half years. Here, in the year 2000, he was looking at documents submitted by the respondent purporting to be from 1994 and 1995. Yet, he said, the ink was still not dry. They were not authentic letters, he concluded.
Counsel for petitioner called this case the most egregious use of dishonesty in the history of the disciplinary system. But, let’s look at the respondent’s case.
Ms. Uff and Ms. Palmer were the respondent’s secretaries during the time period in question. They said the respondent’s girlfriend loaned the office a computer for a little less than one year during 1994 and 1995 so that they could learn about computers. Occasionally, they would type a letter on it and it used the typeface or font not normally used in the office. This is the same typeface that petitioner showed the respondent didn’t begin to use regularly until 1997 or 1998. And, they said, 1994-95 was the transition year of area code 215 to 610. They had stationery of both types on hand, they said. This might *350explain why area code 610 was on the exculpatory letters and bill provided in 1999 to petitioner.
Finally, they said that they had more than one stationery supplier. This was important because all the watermarks of the exculpatory letters were different than the watermarks on the paper normally used in 1994-95. If this testimony were credible, this might supply sufficient answers to petitioner’s allegations and concerns.
However, another curious piece of evidence was not explained away by the secretaries. Secretary Palmer said that the original letters would be signed by the respondent and a copy of that made for the file. In other words, the file copy would have a photocopy of the signature which appeared on the original. Yet, none of the 10 exculpatory letters provided in these proceedings as copies had a photocopy of the signature on them. Why?
The respondent had five witnesses to substantiate his claims. He presented five former clients who said that the letters in their files from 1994-95 were continuously in their possession, that they were the originals, and they were not out of their possession at any time. Further, they had the same typeface and area code as the four questioned documents questioned by Mr. Tytell and Mr. Speckin. In effect, they contradict the expert testimony of Mr. Speckin. We are faced with deciding if the expert is correct and these five witnesses are lying, or the expert is not correct. If the expert is correct, the respondent, his secretary, or someone else supplied these five witnesses with false letters without their knowledge, or with their knowledge and they lied about it. Perhaps their files had been “closed” by the unusual practice described earlier.
*351The respondent brought his expert from Russia. Valery Aginsky Ph.D., questioned the reliability of the ink-dating method used by Mr. Speckin. The Hearing Committee concluded that neither expert was convincing, stating that a Bachelor of Science degree is outweighed by Dr. Aginsky’s doctoral degree. However, Dr. Aginsky performed no tests of his own. The respondent argued that he did not have enough time to do it. But, he had almost four months to do it. The ink-dating method was in use by the Secret Service and other government agencies. Mr. Speckin has testified about this method in 22 states and in Canada.
Dr. Aginsky testified that his own method of ink dating was more reliable and Mr. Speckin’s was deemed unreliable by another expert in published articles. On cross-examination, however, it was brought out that the author of the critical article has since recanted his critical opinion.
The respondent brought forth 35 character witnesses, including a federal judge, prosecutors, former policemen, and lawyers. In a disbarment case, our Supreme Court has said that no amount of character evidence will overcome the fact that a respondent has lied to clients, the clients’ security fund, and the courts. Office of Disciplinary Counsel v. Passyn, 537 Pa. 371, 644 A.2d 699 (1994).
Petitioner was not able to provide any rationale concerning the five witnesses. We are left to decide if there is clear and sufficient proof of this misconduct by respondent despite that testimony. The majority of this board was not convinced. Respectfully, I disagree with them. All doubt has not been removed because of those *352five witnesses. While we may never know how respondent accomplished this particular misdeed, I remain convinced that it was done by him or at his direction. The evidence that remains is clear and sufficient for me to conclude that this respondent has fabricated the evidence in the case and should be disbarred. The indirect evidence of culpability is piled high. The respondent’s misrepresentations in prior matters, the secretaries’ purported “closing of files” by obtaining the return of originals from clients, the erasures of original signatures on the letters submitted by respondent, and the lack of photocopied signatures on the 10 letters being contrary to respondent’s normal practice, cannot be disregarded. All of this is consistent with the petitioner’s expert testimony, substantial, and clear and sufficient proof of his egregious misconduct warranting our most severe sanction.
Board members Stewart, Peck and Teti join in this dissent.ORDER
And now, June 26, 2003, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated January 28, 2003, the petitions for review and responses thereto, the request for a briefing schedule and oral argument is denied and it is hereby ordered that James L. Heidecker Jr., be and he is suspended from the bar of this Commonwealth for a period of one year and one day, he shall comply with all the provisions of Rule 217, Pa.R.D.E., and he shall refund $1,440 to his client, Felix Freytiz. It is further ordered that respondent shall pay costs to the Disciplinary Board relating to the matter docketed at no. 22 D.B. 1999 pursuant to Rule 208(g), Pa.R.D.E.