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: 
2 

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. 
3 

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. 
4 

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. 
5 

 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. 
6 

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. 
7 

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. 
8 

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 
9 

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. 
10 

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 
11 

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.
12 

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). 
13 

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). 
14 

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). 
15 

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). 
16 

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). 
17 

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. 
18 

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). 
19 

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). 
20 

 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). 
21 

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 readmitted 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.