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).
20
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.
21