Unlike Koppel, I unfortunately can think of another attorney who drew a very similar sentence.  In fact, I wasn’t particularly surprised by the sentence, or that Collins was convicted for his role as attorney in facilitating the fraud.  This is clearly an entirely different situation than Marc Dreier, who was the active source of the crime, but when a lawyer enables decisions and choices that allow a crime to occur, they tend to be far more likely to be prosecuted and sentenced harshly than would many others who have a clearer and more significant role.

Gillers is right.  While it’s not quite self-loathing, judges surely raise the bar on one of their own for having disgraced the profession.  The sympathy that might otherwise be shown for a defendant is lost when the defendant is a lawyer.  Expecting more of ourselves means that a greater penalty is needed to meet that expectation.  But that wasn’t quite the way the judge explained it:

At yesterday’s sentencing hearing, Manhattan federal judge Joseph Collins said that Collins, while not motivated by greed, displayed “excessive loyalty to his client.”

This goes far more to the heart of the problem than does anything else.  Lawyers find themselves thrust into the midst of problems created by clients, who then expect their lawyers to both identify the absolute edge to which the envelope can be pushed, as well as provide the explanation to accomplish the desired goal.  That’s the lawyers job.  That’s why we have lawyers, to advise clients.  And it’s not quite wrong for a lawyer, who properly owes a debt of loyalty to his client, to do his best to satisfy his client’s requests and expectations.

The problem arises when the lawyer errs, whether a lot or a little, and goes a step too far.  That’s all it takes to differentiate between a brilliant lawyer, enabling a client to do as he wants without crossing the line from boldness to criminality, and the inchoate prisoner.

The easy answer for the lawyer is never tread too close to the line, and you can avoid finding yourself in the dock.  Good for the lawyer.  Maybe not so good for the client.  The safe answer will keep the lawyer from facing some very harsh consequences, but similarly deprives the client of the lawyer’s fullest advice. 

While it’s impossible to have any real idea whether the 84 month sentence is appropriate, or truly a lawyer tax, for Joseph Collins, it appears that his conviction itself is that price Collins paid for trying to do his job the best he could.  It’s no big deal to ask a lawyer to answer the obvious question; any fool lawyer can do that.  It’s the lawyer reaching the cutting edge who’s at risk, who can’t afford to be wrong without putting himself on the wrong side of the prosecution. 

For the lawyer who is more concerned for his personal safety than serving his client, there’s no problem here.  He will never be at risk, as he will never go anywhere near the edge.  For the lawyer burdened with loyalty to his client, the question will always be how to find the edge, yet stay on the right side of it.  Make the smallest mistake, even one that merely appears to put your toe over the edge, and you can expect to suffer the fate of Joseph Collins.  Or the other lawyers who were sentenced to similar terms of incarceration for having tried a little too hard to do their job.