      IN THE SUPREME COURT OF THE STATE OF DELAWARE

In the Matter of a Member   §              No. 303, 2015
Of the Bar of the Supreme   §
Court of the State of Delaware:
                            §
                            §
   R. DAVID FAVATA, ESQUIRE §
      Respondent            §

                             Submitted: July 9, 2015
                             Decided: July 27, 2015


Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en banc.

Upon Review of the Report of the Board on Professional Responsibility.
SUSPENSION ORDERED.

R. David Favata, Esquire, Respondent, pro se.

Jennifer-Kate Aaronson, Esquire, and Kathleen M. Vavala, Esquire, Disciplinary
Counsel, Wilmington, Delaware, for the Office of Disciplinary Counsel.




Majority, Per Curiam:
         This in an attorney disciplinary proceeding involving charges of professional

misconduct against the Respondent, R. David Favata. A panel of the Board on

Professional Responsibility (The “Board”) found that Favata violated the following

Delaware Lawyers’ Rules of Professional Conduct: one violation each of Rule

3.3(a)(1) (knowingly made a false statement of fact to a tribunal); Rule 3.4(e)

(stated a personal opinion as to the credibility of a witness and/or the guilty of an

accused); Rule 3.5(d) (engaged in conduct intended to disrupt a tribunal and/or in

undignified and discourteous conduct that was degrading to the tribunal); and Rule

8.4(c) (engaged in conduct involving dishonesty, deceit or misrepresentation); and

three violations of Rule 8.4(d) (engaged in conduct prejudicial to the

administration of justice). The Board recommended that Favata receive a Public

Reprimand. Neither Favata nor the Office of Disciplinary Counsel has filed any

objections to the Board’s findings and recommendation.

         We have concluded that the Board’s factual findings of seven ethical

violations are supported by the record. We have determined that the appropriate

sanction is a suspension for six months and one day. This sanction will require

Favata to establish his rehabilitation before he can be re-admitted to practice law as

a member of the Bar of this Court.1




1
    DEL. LAWYERS’ RULES OF DISCIPLINARY PROCEDURE R. 22.
                                            2
                                      Background Facts2

         Favata is a member of the Bar of the Supreme Court of Delaware, having

been admitted in 1988. At all times relevant hereto, Favata was a Deputy Attorney

General employed by the Delaware Department of Justice in Kent County.

         On July 6, 2010, the State of Delaware indicted Isaiah W. McCoy

(“McCoy”) on charges of Murder in the First Degree (Intentional Murder), Murder

in the First Degree (Felony Murder), Possession of a Firearm During the

Commission of a Felony (two counts), Robbery in the First Degree, Possession of a

Firearm by a Person Prohibited, Kidnapping in the First Degree, Conspiracy in the

Second Degree and Theft of a Motor Vehicle. The State noticed its intent to seek

the death penalty. Favata and his co-counsel prosecuted McCoy on behalf of the

State during the guilt and penalty phases of McCoy’s trial.

         On the second day of jury selection, the trial judge granted McCoy’s

application to proceed pro se and designated McCoy’s court-appointed defense

counsel as “Standby Counsel.”

         The jury convicted McCoy of two counts of Murder in the First Degree, two

counts of Possession of a Firearm during the Commission of a Felony and one

count each of Robbery in the First Degree and Conspiracy Second Degree, all




2
    These undisputed facts are taken from the Board’s Report.
                                                 3
counts charged except for the count alleging motor vehicle theft.3 The trial court

sentenced McCoy to death.

                                   Appeal and Reversal

       McCoy appealed his convictions and sentence to this Court. In Isaiah W.

McCoy v. State of Delaware,4 we held that reversible error occurred when Favata

engaged in prosecutorial misconduct by improperly vouching for the credibility of

a State’s witness, Rekeisha Williams (“Williams”).5 Favata stated:

              Objection, Your Honor. Again, this witness has testified
              she didn’t even know this guy. She hasn’t seen him. She
              didn’t talk to him. She obviously hasn’t spoken to the
              defendant since he shot her boyfriend. How would she
              know anything about Deshaun White; what he said to
              anybody.6

“By giving his own opinion on the guilt of McCoy,” Favata improperly vouched

for Williams’ testimony by expressing his personal opinion that McCoy was

guilty7 and “implicitly and inappropriately corroborated Williams’ testimony and

endorsed her credibility.”8 “[Favata’s] vouching prejudicially affected McCoy’s

substantial rights to a fair trial and require[d] the reversal of McCoy’s

convictions.”9


3
  McCoy v. State, 122 A.3d 239, 244 (Del. 2015).
4
  Id. at 230-44.
5
  Id. at 258.
6
  Id. (emphasis in original).
7
  Id. at 260-61.
8
  Id.
9
  Id. at 261-62.
                                              4
        In addition to vouching, this Court held that Favata engaged in a pattern of

unprofessional      conduct    throughout   the   trial,   which   included   improper

commentary,10 attempts to prevent Standby Counsel from providing assistance to

McCoy,11 and disparaging remarks about McCoy with numerous demeaning

comments focused on McCoy’s self-representation.12 We held, as follows:

                Although most of this misconduct occurred outside the
                jury’s presence, the conduct set a tone for the trial that
                was disturbing and unacceptable and increased the
                potential that the jury would decide the case by
                discounting the defendant’s version of events for
                inappropriate reasons, a factor made even more important
                given the centrality of witness credibility in this case.
                That conduct also was of a nature calculated to hamper
                McCoy’s ability to present his defense effectively,
                another relevant factor in persuading this Court that we
                cannot conclude this instance of vouching can be deemed
                harmless. Accordingly, application of the Hughes test
                establishes the prosecutor’s vouching prejudicially
                affected McCoy’s substantial rights to a fair trial and
                requires the reversal of McCoy’s convictions.13

        This Court concluded that Favata’s “conduct during McCoy’s trial

frequently did not comport with [the] fundamental professional requirements [set

forth in Rules 3.5 and 3.8].”14         Citing Rule 3.5(d) and the American Bar

Association’s Standards governing prosecution and defense functions, we stated:



10
   Id. at 262-66.
11
   Id. at 263-64.
12
   Id. at 261-66.
13
   Id. at 261-62.
14
   Id. at 262.
                                            5
The Delaware Lawyers’ Rules of Professional Conduct
state that a lawyer shall not “engage in conduct intended
to disrupt a tribunal or engage in undignified or
discourteous conduct that is degrading to a tribunal.”

In keeping with the American Bar Association’s
standards governing prosecution and defense functions,
we have held that it is improper for the prosecutor to
disparage defense counsel or ‘sarcastically to mock the
defense case . . . .’ While a prosecutor “may strike hard
blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.”

The record reflects that the prosecutor mocked McCoy
during cross-examination, attempted to prevent him from
using his standby counsel for legal research and logistical
assistance, and actively generated a level of “cynicism”
that permeated the trial, to quote the trial judge. Even if
some of their efforts at preventing McCoy’s standby
counsel from assisting him were unsuccessful and even if
most of their sarcastic comments were made outside the
jury’s presence, the prosecutor’s repetitive pattern of
unprofessional conduct set a tone for trial that is
inconsistent with the due process rights of a capital
murder defendant.

A defendant has a right, under the Sixth Amendment to
the United States Constitution, to proceed pro se in a
criminal trial. . . . Prosecutorial misconduct that
disparages a defendant for making the choice to proceed
pro se interferes with his right to a fair trial and his right
of self-representation. The record in this case reflects
that the prosecutor’s conduct was so demeaning and
belligerent to McCoy, outside the presence of the jury,
that it reasonably could have affected the effectiveness of
McCoy self-representation in front of the jury.



                              6
                  The record reflects a pattern of unprofessional conduct
                  by the prosecutor that impugns the integrity of the
                  judicial process. Most of the sarcasm directed at McCoy
                  related directly to his choice to exercise his right to
                  defend himself under both the Sixth Amendment to the
                  United States Constitution and Article 1, Section 7 of the
                  Delaware Constitution. . . .           The prosecutor’s
                  unprofessional conduct in McCoy’s case is the antithesis
                  of the high standards that are the hallmark of Delaware
                  lawyers and must not be repeated.15

          We noted that the trial judge attempted multiple times to “rein in [Favata’s]

behavior,” including several cautions and admonishments, and an extensive

reprimand during the penalty phase.16

                                       The Omerta Comment

          During a recess on July 5, 2012, Favata made several statements regarding

“Omerta,” a code of silence associated with the Italian mafia, and its similarities to

the Bloods’ code of silence requiring its members to refuse to provide information

to the police, as well as what might happen to someone who violated these codes.

Favata’s comments were heard by McCoy and the Prothonotary, Carol Lemieux.

As Favata ultimately admitted, his comments were meant to be heard by McCoy

and began as soon as McCoy was brought into the courtroom by the prison guard.

Favata’s comments included that the prosecution would put Detective Pires back

on the stand to tell everyone that McCoy was a “snitch,” that there would be a


15
     Id. at 265-66 (internal footnotes omitted).
16
     Id. at 265.
                                                   7
reporter there from the News Journal, and that McCoy could have trouble back at

the prison after other inmates learned that McCoy had “snitched.”

      McCoy alerted the trial judge to Favata’s comments when the trial judge

resumed the bench. According to McCoy, Favata mentioned McCoy’s “ratting on

[his] associates and friends and how they would possibly be coming after [him]

and . . . [Favata] planned to bring this out.” McCoy stated that Favata told him that

if he broke his gang oath, “that the inmates are going to get [him],” and that

McCoy was “hiding” at the correctional facility.

      The trial judge inquired about the truth of what McCoy alleged. Favata

denied that he was talking to McCoy.

           MR. FAVATA:          I was not talking to him, Your Honor, at
                                all. I was talking to Ms. Weaver and
                                Detective Ryde.

           THE COURT:           So there’s no direct communication
                                between Mr. McCoy and yourself?

           MR. FAVATA:          I don’t have any communication with him.

           THE COURT:           There should not be any direct
                                communication unless it was something of
                                substance and its related to what could be
                                said between one lawyer to another lawyer
                                or someone acting a as lawyer for yourself
                                as you are in that capacity.

           [McCoy]              Your Honor, I’m not the only person in this
                                courtroom. How could I make up me and
                                him having a conversation that we never
                                had? All of the attorneys are officers of the
                                         8
                               Court and bottom line is at no point in time
                               he’s denying what I said he said, he never
                               denied that. He’s just trying to say that he
                               didn’t talk to me. There were other people
                               present.

       Responding to McCoy’s concern, the trial judge tried to determine what had

transpired: “If it was not stated on the record, is there any way which I can

ascertain whether in fact it was said to you or not? Is this on the record or not?”

Because Favata’s comments were not recorded, the trial judge relied on Favata’s

representation, i.e., that he was not talking to, and did not communicate with,

McCoy:

           THE COURT:          Apparently, from what Mr. Favata told the
                               court, the conversation was not directed to
                               you, you may have been – you may have
                               been trying to listen in to hear a
                               conversation and that was your summation
                               but from what I’ve been told here I have no
                               – Mr. Favata indicates he was not talking to
                               you whatever he was talking about so –
                               that’s all I can say.

           [McCoy]             Your Honor, I’m shocked that Mr. Favata
                               would lie to the court that way.

           THE COURT:          Mr. McCoy, I know what you’re trying to
                               do. You’re trying to put this on the record.
                               You’ve already made your allegation on
                               the record of what you believe was said but
                               apparently the court finds it was not said to
                               you. You have no proof of that at this
                               point. I’m not going to delve into it. This
                               applies to the State as well. I don’t want
                               any more conflicts of this nature to occur.
                                        9
           THE COURT:          [L]et me just say this. Mr. Favata, I hope
                               this communication did not take place. If
                               you made that statement, whether it’s
                               between you and Mr. McCoy or between
                               you and someone else, it should not be
                               made in open court if it was made, and I’m
                               not saying you admit the fact that you
                               made these comments, but they should not
                               be made. If you expect that any comments
                               like that or similar to that, it is not to be
                               overheard in open court. Okay?

           MR. FAVATA:         Yes, Your Honor


      When testimony was resumed, the Prothonotary was so disturbed by

Favata’s conduct and her perception of his misrepresentation to the court that he

“was not talking to [McCoy] . . . at all” and “[doesn’t] have any communication

with [McCoy],” that she wrote the trial judge a note saying “McCoy was telling

the truth.” To prove its allegation that Favata lied to the trial judge, ODC called

the Prothonotary to testify at this disciplinary proceeding. She testified that the

trial judge called her into chambers to make a more thorough examination into the

meaning of her note.

      On September 14, 2012, Favata finally admitted making some of the

comments at issue in the State’s Response to McCoy’s Motion for a Rule to Show

Cause/Sanctions, but did not properly acknowledge any reference to McCoy and




                                        10
falsely stated that McCoy was “eavesdropping.” In response to McCoy’s Motion

for Sanctions, Favata asserted:

             [T]he undersigned prosecutor informed the Court that
             McCoy was eavesdropping on a conversation between
             he, his co-counsel and the chief investigating officer
             about the similarities between the Mafia’s code of silence
             (“Omerta”) and the Bloods [sic] code of conduct
             requiring Bloods never to provide information to the
             police, as well as what might happen to someone who
             violated these codes. McCoy’s attempt to resurrect this
             issue is nothing more than a blatant attempt to gain some
             revenge on the prosecutor who successfully prosecuted
             him. The Court did not believe it then, and should not do
             so now.17

                          Trial Judge Reprimands Favata

      Shortly thereafter, and following another inappropriate comment by Favata,

the trial judge reprimanded Favata:

            THE COURT:            Listen, I’m reaching a level which I am
                                  very upset [about] [t]he way the
                                  prosecution is handling this case. I don’t
                                  appreciate smart-ass remarks, pardon my
                                  French but that’s what it is, [Favata].
                                  You’re being disrespectful to the Court as
                                  well as to Mr. McCoy and witnesses. Your
                                  antics in this trial have been totally
                                  disrespectful, in my view, of what properly
                                  should happen in a court procedure,
                                  particularly a serious matter like this. I
                                  don’t appreciate off-the-cuff remarks. I
                                  don’t appreciate your making frivolous
                                  statements in my view or matters which

17
  State’s Response to Defendant’s Motion for Sanctions/Rule to Show Cause at 3, Sept. 13,
2012.
                                           11
                                      should be taken seriously. I don’t like the
                                      cynicism that’s being generated. I don’t
                                      like the facial expressions that you make
                                      sometimes. I can expect some of that from
                                      Mr. McCoy because he’s a criminal
                                      defendant. He’s acting as his own counsel.
                                      He’s inexperienced.

                                      You, sir, are an experienced trial lawyer
                                      and I expect some better conduct out of you
                                      and Ms. Weaver [co-counsel] to some
                                      extent. Ms. Weaver is less culpable than
                                      you are in my opinion. Let’s get that out
                                      on the table, OK?18

              The Seven Counts Against Favata and Board’s Findings19

COUNT ONE: IN VIOLATION OF RULE 3.3(a)(1),20 FAVATA
KNOWINGLY MADE A FALSE STATEMENT OF FACT TO A
TRIBUNAL

       Favata, in his Amended Answer to the Board, finally admitted to the fact

that he intended for McCoy to overhear his remarks. The Board found that by

knowingly making false statement(s) of fact to the Superior Court that (i) he “was

not talking to [McCoy] . . . at all”; (ii) he “[did not] have any communication with

[McCoy]”; and (iii) McCoy was “eavesdropping” on a conversation between

Favata, co-counsel and the chief investigating officer; and because he failed to




18
   McCoy, 112 A.3d at 265.
19
   This section of the opinion is taken from the Board’s Report.
20
   Rule 3.3(a)(1) requires that a “lawyer shall not knowingly . . . make a false statement of fact or
law to a tribunal or fail to correct a false statement of material fact or law previously made to the
tribunal by the lawyer.” DEL. LAWYERS’ RULES OF PROF’L CONDUCT R. 3.3(a)(1).
                                                12
correct these false statement(s) of material fact previously made to the Superior

Court, Favata violated Rule 3.3(a)(1). We agree with the Board.

COUNT TWO: IN VIOLATION OF RULE 3.4(e),21 FAVATA, IN TRIAL,
STATED A PERSONAL OPINION AS TO THE CREDIBILITY OF A
WITNESS AND/OR THE GUILT OF AN ACCUSED

       By stating his personal opinion about the credibility of a witness, Favata was

guilty of vouching for the credibility of a State’s witness, Favata violated rule

3.4(e). Because this Court so found,22 an independent finding by the Board was

unnecessary.

COUNT THREE: IN VIOLATION OF RULE 3.5(d),23 FAVATA ENGAGED
IN CONDUCT INTENDED TO DISRUPT A TRIBUNAL AND/OR IN
UNDIGNIFIED AND DISCOURTEOUS CONDUCT THAT WAS
DEGRADING TO A TRIBUNAL

       The Petition alleged that by making improper commentary, attempting to

prevent Standby Counsel from providing assistance to McCoy, and making

disparaging remarks about McCoy with numerous demeaning remarks focused on

McCoy’s self-representation, Favata engaged in conduct intended to disrupt the

tribunal and/or engaged in undignified and discourteous conduct that was

degrading to the tribunal, in violation of Rule 3.5(d).                   Favata admitted this

21
   Rule 3.4(e) states that a lawyer shall not “in trial, . . . assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of a cause,
the credibility of a witness, [or] the guilt or innocence of an accused . . . .” DEL. LAWYERS’
RULES OF PROF’L CONDUCT R. 3.4(e).
22
   See McCoy, 112 A.3d at 260-61 (citing Rule 3.4(e)).
23
   Rule 3.5(d) prohibits a lawyer from engaging “in conduct intended to disrupt a tribunal or
engaging in undignified or discourteous conduct that is degrading to a tribunal.” DEL. LAWYERS’
RULES OF PROF’L CONDUCT R. 3.5(d).
                                                13
violation. However, at the beginning of the Hearing, ODC announced that it

would not proceed with that theory; instead, it “proceed[ed] under the theory that

he engaged in conduct that was undignified and discourteous or degrading to a

[tribunal], not to disrupt the tribunal.” Favata readily admitted that his conduct

violated the Rules of Conduct under this alternate theory. Accordingly, we agree

that the Board’s finding that Favata was guilty on this count was supported by the

record.

COUNT FOUR: IN VIOLATION OF RULE 8.4(c),24 RESPONDENT
ENGAGED IN CONDUCT INVOLVING, DISHONESTY, DECEIT OR
MISREPRESENTATION

       By making false statement(s) to the Superior Court (i) that he “was not

talking to [McCoy] . . . at all”; (ii) that he “[did not] have any communication with

[McCoy]”; (iii) that McCoy was “eavesdropping” on a conversation between

Respondent, co-counsel and the chief investigating officer; and (iv) by failing to

correct these false statement(s) previously made to the Superior Court, Respondent

violated Rule 8.4(c). Again, Respondent admitted to this violation.




24
  Rule 8.4(c) provides, inter alia, it is professional misconduct for a lawyer to “engage in
conduct involving dishonesty . . . deceit or misrepresentation.” DEL. LAWYERS’ RULES OF
PROF’L CONDUCT R. 8.4(c).
                                            14
COUNT FIVE: IN VIOLATION OF RULE 8.4(d),25 FAVATA ENGAGED IN
CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE

       By knowingly making a false statement(s) of fact to the Superior Court (i)

that he “was not talking to him [McCoy] . . . at all”; (ii) that he “[did not] have any

communication with [McCoy]”; (iii) that McCoy was “eavesdropping” on a

conversation between Favata, co-counsel and the chief investigating officer; and

(iv) failing to correct these false statement(s) of material fact previously made to

the Superior Court, Favata engaged in conduct prejudicial to the administration of

justice, in violation of Rule 8.4(d). Favata admitted to this violation as well.

COUNT SIX: IN VIOLATION OF RULE 8.4(d), FAVATA ENGAGED IN
CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE

       By expressing his personal opinion regarding McCoy’s guilt and vouching

for the credibility of a State’s witness, we agree with the Board’s finding that

Favata engaged in conduct prejudicial to the administration of justice in violation

of Rule 8.4(d). Favata admitted to this violation.




25
   Rule 8.4(d) prohibits a lawyer from engaging “in conduct prejudicial to the administration of
justice.” DEL. LAWYERS’ RULES OF PROF’L CONDUCT R. 8.4(c).
                                              15
COUNT SEVEN: IN VIOLATION OF RULE 8.4(d), FAVATA ENGAGED
IN CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE

         By engaging in a repetitive pattern of unprofessional conduct, as set forth in

paragraphs 10 through 13 of the Petition, which interfered with McCoy’s right to a

fair trial and his right to self-representation and/or impugned the integrity of the

judicial process, we agree that the Board’s finding that Favata engaged in conduct

which was prejudicial to the administration of justice in violation of Rule 8.4(d)

was supported by the record. Favata admitted to this violation.

         With all seven counts being admitted by Favata or found by this Court on

appeal, (i.e., Counts Two and Three), the Board concluded that the ODC had met

its burden of proving facts of the alleged ethical violations by clear and convincing

evidence.26       The only matter left for the Board to decide was a sanction

recommendation.

                                  ABA Sanction Standards

         In reaching its recommendation of an appropriate sanction, the Board

considered the ABA Standards for Imposing Lawyer Sanctions (the “ABA

Standards”):

                 The ABA framework consists of four key factors to be
                 considered by the Court: (a) the ethical duty violated; (b)
                 the lawyer’s mental state; (c) the actual potential injury



26
     Compare In re Lassen, 672 A.2d 988, 994 (Del. 1996).
                                               16
              caused by the lawyer’s misconduct; and (d) aggravating
              and mitigating factors.27

       The Board also relied upon the ABA Standards for Imposing Lawyer

Sanctions in determining what the sanction against Favata should be, specifically

Standard 6.0: Violations of Duties Owed to the Legal System.                 The Board

determined that the introduction was instructive:

       Lawyers are officers of the Court, and the public expects lawyers to
       abide by the legal duties of substance and procedure which affect the
       administration of justice. Lawyers must always operate within the
       bounds of the law, and cannot create or use false evidence or make a
       false statement or material fact.28

The ODC directed the Board’s attention to Standard 6.2, which provides for

sanctions “in cases involving failure . . . to obey an obligation under the rules of a

tribunal . . . .”29 More specifically, Standard 6.22 provides:

              Suspension is appropriate when a lawyer knowingly
              violates a court order or rule, and there is injury to a
              client or a party, or interference or potential interference
              with a legal proceeding.30

       The Board found that Favata acted knowingly when he committed the

transgressions to which he was charged and which the Board found Favata

committed.     Accordingly, the Board acknowledged that, according to the

applicable ABA Standards, the presumptive sanction is suspension. Nevertheless,

27
   In re Koyste, 111 A.3d 581, 589 (Del. 2005).
28
   ABA Standards for Imposing Lawyer Sanctions, at 6 (1992).
29
   Id. at Standard 6.2.
30
   Id. at Standard 6.22.
                                            17
the Board recommended a public reprimand as the appropriate sanction after

considering the aggravating and mitigating factors.

                                   Attorney Discipline

       This Court has the exclusive authority for admitting and disciplining persons

with regard to the practice of law in Delaware.31 The nature of the relationship

between this Court and an attorney was summarized by Victor B. Woolley in his

seminal treatise on Delaware practice:

              The chief characteristic of an attorney-at-law is that he is
              an officer of the court. . . . He is an officer of the court,
              admitted as such by its order, upon evidence of his
              possessing sufficient legal learning and fair private
              character. The order of admission is the judgment of the
              court that he possesses the requisite qualifications as an
              attorney, and is entitled to appear as such and conduct
              causes therein.

              It is the right of which he can be deprived only by the
              judgment of the court, for moral or professional
              delinquency.32

       All lawyers take an oath upon their admission to the Bar of this Court. The

oath is a solemn promise of competent and ethical conduct, which dates back to the

beginnings of the legal profession.33 It is a venerable “tradition in both form and




31
   In re Green, 464 A.2d 881, 885 (Del. 1983).
32
   1 Victor B. Woolley, Woolley on Delaware Practice § 96 (1906) (citing Ex parte Garland, 71
US. (4 Wall.) 333, 378-79, 18 L.Ed. 366 (1866)).
33
   Carol Rice Andrews, The Lawyer’s Oath: Both Ancient & Modern, 22 GEO. J. LEGAL ETHICS
3, 4 (2009).
                                             18
substance.”34 Honesty was a central requirement in the attorney’s oath that was

used in the era of Justinian.35

       Today, lawyers in the United States swear to one of three basic forms of oath

– the English simple oath, the English “do no falsehood” oath, or the Swiss (ABA)

detailed oath.36 Honesty is a common principle that remains a constant in the

attorney oath for every state regardless of the format.

       Delaware and a number of other states continue to use a version of the

venerable “do no falsehood” oath.37 Delaware first adopted the “do no falsehood”

oath in 1704.38 In 1721, Delaware shortened its variation of the “do no falsehood”

oath, and three centuries later, that is essentially the form of oath used today.39

Thus, Favata took the following oath upon his admission to the Delaware Bar:

              “I . . ., do solemnly swear (or affirm) that I will support
              the Constitution of the United States and the Constitution
              of the State of Delaware; that I will behave myself in the
              office of an Attorney within the Courts according to the
              best of my learning and ability and with all good fidelity
              as well to the Court as to the client; that I will use no
              falsehood nor delay any person’s cause through lucre or
              malice.”40



34
   Id.
35
   Id. at 9-17.
36
   Id. at 45-49.
37
   In re Davis, 43 A.3d 856, 865 (Del. 2012).
38
   Josiah Henry Benton, The Lawyer’s Official Oath and Office 44 (1909).
39
   See id.; see also In re Abbott, 925 A.2d 482, 487 (Del. 2007) (“[Delaware’s] oath is, in its
essential language, the same one taken by Delaware lawyers since colonial days.”)
40
   DEL. SUPR. CT. R. 54 (emphasis added).
                                              19
         Two fundamental ethical principles in the Delaware oath are to act with

fidelity to the Court and to use no falsehood.41 The record reflects that Favata

violated these fundamental ethical principles, in the context of committing many

other violations of the Delaware Lawyers’ Rules of Professional Conduct.

                                    Sanction is Suspension

         Two prior precedents are particularly relevant in this proceeding.42 In both

Chasanov and Amberly, the attorneys ethical violations included making false

statements to a court (Rule 3.3) and engaging in dishonesty and misrepresentation

which reflected adversely on the lawyer’s fitness to practice law (Rule 8.4). In

both cases, this Court imposed a suspension of six months. A suspension of six

months or less permits re-admission without a demonstration of rehabilitation.

         In Favata’s case, the context and nature of the Omerta statements constitute

a significant aggravating circumstance. Favata initially falsely denied making the

Omerta statements to McCoy.              When the Prothonotary corroborated McCoy’s

account, Favata admitted only part of the substance and then falsely accused

McCoy of eavesdropping. The complete substance of the Omerta statements was

intended to intimidate McCoy, who was acting pro se, and put him in fear of

bodily harm in prison. Favata now admits that he intended for McCoy to hear the

intimidating Omerta statements about prison reprisals. Such improper conduct

41
     In re Davis, 43 A.3d at 863-65.
42
     In re Amberly, 996 A.2d 793 (Del. 2010); In re Chasanov, 869 A.2d 327 (Del. 2005).
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stands out as the nadir in Favata’s continuum of egregious professional misconduct

in McCoy’s case.

                                     Conclusion

      The objectives of the Lawyer Disciplinary system are to protect the public,

to protect the administration of justice, to preserve confidence in the legal

profession, and to deter other lawyers from similar misconduct.43 We conclude

that any sanction other than suspension would not provide the necessary protection

for the public, serve as a deterrent to the legal profession, or preserve the public’s

trust and confidence in the integrity of the disciplinary process for Delaware

lawyers. Therefore, it is hereby ordered, that Favata is suspended from the practice

of law as a member of the Bar of this Court for six months and one day.44 This

sanction will require Favata to establish his rehabilitation before he can be re-

admitted to practice law as a member of the Bar of this Court.45




Vaughn, Justice, concurring in part, and dissenting in part:

      I believe that a suspension of less than six months would be an adequate

punishment.


43
   In re McCann, 894 A.2d 1087, 1088 (Del. 2005).
44
   See In re Poliquin, 49 A.3d 1115 (Del. 2012).
45
   DEL. LAWYERS’ RULES OF DISCIPLINARY PROCEDURE R. 22.
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