She’s sued Pierce County over and over. Can she take a job advising its sheriff?

After a judge barred a private attorney from acting as a legal advisor to Pierce County Sheriff Keith Swank, the sheriff said he offered the lawyer a job giving him policy advice.

The lawyer, Joan Mell, has offices in Fircrest and Montana, and she frequently represents public employees in Pierce County in lawsuits against local governments. She also has experience advising members of the state Legislature on policy and is on the board of the Washington Coalition for Open Government.

Mell hasn’t taken Swank’s job offer, but she said she would seriously consider it in a part-time capacity if the preliminary injunction prohibiting her from representing Swank is lifted or clarified.

That injunction came after Prosecutor Mary Robnett brought Mell to court. Robnett argued that Mell had usurped Robnett’s role as the sole legal advisor to county officials by serving County Executive Ryan Mello, County Council Chair Jani Hitchen and Robnett a letter demanding mediation on behalf of Swank. The letter said Swank had reached an impasse with the officials on six issues, including his desire to work with U.S. Immigration and Customs Enforcement and his belief that his office wasn’t subject to Mello’s executive orders.

Swank began consulting with Mell sometime in late May after a falling-out with Robnett in which Swank told the prosecutor he had no faith in her counsel and later initiated a bar complaint against her.

Copies of emails between the sheriff and prosecutor showed Swank had been upset by Robnett informing him that the Sheriff’s Office would have to follow the county executive’s directives. Swank disagreed, citing a response from the artificial-intelligence service ChatGPT and said he would seek “legal advice” elsewhere.

Now Swank says perhaps “legal advice” wasn’t the term he was looking for. If Mell or someone else fills the role of “senior counsel” or “strategic advisor,” Swank told The News Tribune, he’d like them to review all of the Sheriff’s Office’s policies and procedures to make sure they are following best practices and are in line with policing standards throughout the country.

“I also just want to have somebody there if I say, ‘Well, I’m thinking about changing this thing or that thing, and what do you think about it?’” Swank told The News Tribune in a phone call. “Somebody that has wisdom and I can bounce ideas off of.”

Swank said he got the idea after asking Robnett about the two lawyers Mello has on staff in his office as “executive counsel” and “senior counsel.” Swank said Robnett told him the lawyers weren’t legal advisors but just advise Mello on policy.

“I was like, ‘Oh that’s wonderful, that’s exactly what I want,’” Swank said. “I’ve just been using the wrong term, so maybe we can resolve this whole thing.”

Mell’s history of litigation with Pierce County.

In 2010, Mell was an attorney for a Pierce County employee who brought claims against the late Assessor-Treasurer Dale Washam, alleging the employee, who was demoted by Washam and later resigned, was retaliated against and had his rights violated.

In 2011, Mell represented a Sheriff’s Office detective who sued the county after she was investigated for allegedly sending a death threat to a local deputy prosecutor, Mary Robnett. Mell continued to represent the detective, Glenda Nissen, throughout a costly, years-long battle with former Prosecutor Mark Lindquist that ended in 2019. More recently, Mell has represented nine former members of a Special Investigations Unit in the Sheriff’s Office in a lawsuit against Pierce County claiming they were baselessly investigated and disparaged for political reasons. The case is awaiting a ruling from the U.S. 9th Circuit Court of Appeals.

In a phone call with The News Tribune, Mell quipped that the county would be saving money if she was hired by the Sheriff’s Office and couldn’t sue them anymore.

“Go back and look at how much money I’ve made off of suing the Sheriff’s Department in the last 30 years,” Mell said.

A match made in county politics

What do Swank and Mell see in each other?

Swank sees a lawyer willing to take up his fights with county officials who he is politically opposed to. Mell sees a sheriff willing to stand against the directives of the Prosecuting Attorney’s Office, which happens to be a sticking point in the lawsuit brought by the former Special Investigations Unit members she represents.

Swank, a Republican serving in a nonpartisan office, has pointed out his political differences with Mello and Hitchen, both Democrats, in sworn declarations filed in Robnett and Mell’s civil case. Swank said his conservative beliefs are “regularly attacked,” particularly his opposition to sanctuary laws — such as the Keep Washington Working Act.

“I value Attorney Mell’s advice,” Swank wrote in the same declaration. “I know her to have the requisite experience and perspective that I am seeking in an attorney.”

That was before Mell was prohibited from giving Swank legal advice. In a phone call, Swank stopped short of saying that he’d like to employ Mell as a strategy advisor to guide him on challenging the Keep Washington Working Act, which limits cooperation between local law enforcement and federal immigration authorities.

“I wouldn’t want to go down that road. I’ll stick with the prosecutor’s advice on that,” Swank said.

Swank added that he’s going to wait and see what the courts rule in the state Attorney General’s lawsuit against Adams County, which is alleged of helping federal officials with immigration enforcement.

Mell told The News Tribune she “doesn’t really care” if someone is a Republican or a Democrat, but she is “much more conservative” than she is aligned with Mello’s policies. She said she has long been desperate for a sheriff willing to say that a prosecutor can’t tell him or her what to do.

“In order to maintain a balanced system with integrity in Pierce County, you cannot have those positions uniformly aligned,” Mell said.

“It fractures the system, and the sheriff’s department loses its discretion,” she added.

Swank’s job offer raises questions

The potential job arrangement for Mell and Swank raises some practical and ethical questions. How would the position be funded, and where is the line between policy advice that intersects with the law and legal advice?

On the funding side, Swank said he is allowed a number of appointed positions as sheriff, and he’s yet to use all of them. He said he expects to be able to pay for the job with money already budgeted to the Sheriff’s Office.

The ethical questions are stickier.

“This is a very difficult question to answer. In fact I can’t say it’s answerable except by judges in the future,” Hugh Spitzer, a semi-retired professor at the University of Washington School of Law, told The News Tribune.

Spitzer authored a research paper published in 2019 that addressed the ethical obligations of licensed lawyers who undertake policy or management roles in government. It concluded that lawyers in those positions need to take extra care to inform colleagues that they aren’t working as lawyers.

If their tasks do involve law-related services, Spitzer wrote, the lawyer should follow an American Bar Association rule called “responsibilities regarding law-related services,” to assure that the people the lawyer works for understand they are not getting legal services and that their work doesn’t have the protections of the client-lawyer relationship.

Mell wouldn’t cease being a lawyer even if she’s serving in a non-lawyer role, Spitzer told The News Tribune, and she still might conclude that her discussions with Swank are confidential.

Spitzer said it’s important to distinguish between attorney-client privilege, which is an evidence rule relevant to litigation, and the duty of confidentiality, a broader ethical duty that is enforced through the bar association and can lead to disciplinary action if it’s not upheld.

Mell has navigated such ethical quandaries before as “policy counsel” for the state Legislature and as a policy advisor to a former secretary of the Department of Social and Health Services, Dennis Braddock.

“There’s no question I was giving him legal advice,” Mell said. “I’m like you need to object to this legislation because the legal implications of this are this, but it’s policy advice because it’s being applied to policies.”

Proposal to end Robnett, Mell’s legal battle fails

To give Swank policy advice, Mell would first have to escape the legal battle she and Robnett are engaged in. Mell said her attorney in that matter, Brett Purtzer, gave Robnett a proposed order of dismissal in the civil case Monday that would have Mell and Robnett agree to certain terms about how Mell could represent Swank.

The proposal appears dead on arrival. Adam Faber, a spokesperson for the Prosecuting Attorney’s Office, said Thursday that Robnett does not agree to the proposed stipulation, and they are moving forward with their legal action. The next court date is in September.

According to a copy of the proposed order, Mell would not be allowed to be Swank’s legal advisor in the official business of the Sheriff’s Office, but she could represent him in his “personal and political capacities,” with Mell specifying what those are in any correspondence.

It would also let Mell represent Swank in claims against Pierce County or its officials, allow her to advise Swank in an action to obtain court-appointed counsel and permit her to act as his policy advisor.