March 23, 1996
“A Conflict Of Interest?”
Can an attorney adequately represent sent two conflicting points of view of two separate cases in the same district court?
Is it proper for a lawyer to cite a decision he lost, but was appealing, to help another client with a totally different legal position, in the same district court?
Does an attorney defending a journalist from a prosecutor’s subpoena lose credibility if he subpoenas the notes of another journalist in a civil suit?
At what point in a legal relationship should a lawyer inform his client about possible conflicts of interest?
Marshall M. Tanick, a Minneapolis attorney whose legal arguments on behalf of the Minnesota Daily, a student newspaper, have won him wide acclaim, is at the epicenter of all those questions.
Tanick’s representation of media and anti-press clients has been debated in the Twin Cities at private and public forums. Lawyers and journalists have been reluctant to criticize Tanick, citing the past 15 years of an impressive string of free press triumphs for the Minnesota Daily.
In a celebrated 1983 United States Supreme Court case, Tanick fought off the University of Minnesota’s attempt to grab control of the student newspaper after it published a “Christ Speaks” satire.
Tanick also won two important Freedom of Information suits against the university that forced it to open its books on scandals involving its wrestling and basketball teams.
But in recent years, Tanick expanded his specialized First Amendment law practice into one that included clients who were strongly anti-First Amendment.
He served as adviser to a group trying to persuade legislature to pass an invasion of privacy statute that the Minnesota Newspaper Association said would cripple news coverage. Tanick also defended General Mills in a trademark case claiming the public had no right to know the names of the defendants in a lawsuit.
Many Minnesota journalists and lawyers believe Tanick is hurting the credibility of First Amendment specialists by arguing for and against press freedoms, sometimes in the same courthouse.
Tanick, once a journalist with the Voice of America and several weekly newspapers, insisted he has never represented one client to the detriment of another.
“I don’t take positions in court that clash with positions of a client in another one,” Tanick said in an interview. “It is advantageous to a client to have an attorney who views cases from different perspectives.”
Tanick also contends that he studiously avoids conflicts between his media clients and those in his non-journalistic community.
“I haven’t heard any criticism about my practice,” he said.
But now even the Minnesota Daily student journalists, who once saw Tanick as a legal knight in shining armor, are accusing him of a possible conflict of interest.
The Minnesota Daily asked Tanick to invoke the Minnesota Free Flow of Information Act – the shield law – to fight a Hennepin County prosecutor’s subpoena for unpublished photos in a criminal case. As part of the case, Tanick was asked to fight a subpoena that eventually would force one of their reporters to testify at the trial.
But even as Tanick was invoking the state shield law in the Daily, case, he was attacking it on behalf of a client involved in a multimillion dollar civil suit against the Minneapolis, Star Tribune.
At one point, Tanick cited a negative court decision against the Minnesota Daily, he was in the process of appealing to win legal points for the client suing the Star Tribune.
Both cases were heard during the same time period in the Hennepin County District courthouse.
Michele Ames, editor in chief of the Minnesota Daily, says she will consider asking the Minnesota Bar Association to investigate Tanick’s legal conduct.
“To my knowledge, Marshall Tanick’s representation of our newspaper has been solid and professional,” said the 26-year-old editor.” But I am distressed by what I have learned the past two months.