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BigLaw Associate Gets Nod to Argue Davila Case to SCOTUS

By William Peacock, Esq. on April 16, 2013 | Last updated on March 21, 2019

They knew from a young age that Clark Kent was destined to be far more than your average farm boy. In fact, to refer to him as a mere farmer does not do his mighty skill set justice, just as referring to Orrick's Robert Yablon as an "associate" does not even begin to describe the young man's accomplishments.

"Rob is the full package," Joshua Rosenkranz of Orrick's Supreme Court and appellate practice section told Bloomberg in a phone interview last week. "He is analytically brilliant. He is highly strategic. He is able to articulate in crisp clear prose the nub of the answer to any question, and he's unflappable."

It is rare that a BigLaw associate is tapped to argue a landmark case in front of the Supreme Court. Yablon is a rare associate, however. According to Bloomberg, he is a two-time Supreme Court clerk, first for Justice Ruth Bader Ginsburg, followed by a stint clerking for Justice Sonia Sotomayor. After spending two years in SCOTUS' chambers, a return as an appellate advocate should be far less unnerving, though one doubts there is ever a situation where arguing to the Nine is stress-free.

So what did he advocate when he stepped up to the podium yesterday? Keeping judicial intervention out of plea bargaining.

In 2010, Anthony Davila pled guilty to tax fraud claims. However, he only did so after his request for new counsel was denied. He made that request because his attorney did not advise him on any defensive strategies other than taking a plea. The judge, hilariously, and arguably inappropriately, responded:

The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you've got to go to the cross. You've got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.

Yep. The judge told him to "go to the cross", which is pretty hilarious. The Eleventh Circuit ruled that the judge's conduct amounted to judicial participation in plea bargaining - a violation of Rule 11. For more on the case, check out our SCOTUS blog.

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