212 F.3d 980 (7th Cir. 2000)
In re Arthur L. Lewis, Jr., et al.,    Petitioners.
No. 99-3983
In the  United States Court of Appeals  For the Seventh Circuit
Argued March 28, 2000Decided May 11, 2000

Petition for a Writ of Mandamus to the United States  District Court for the Northern District of  Illinois, Eastern Division.  No. 98 C 5596--Joan B. Gottschall, Judge.
Before Easterbrook, Manion, and Evans, Circuit Judges.
Easterbrook, Circuit Judge.


1
Chicago hires  firefighters on the basis of a competitive  examination plus additional criteria applied to  those who achieve a passing score. During the  last four years Chicago has been hiring from a  list created in 1995; the list includes those who  scored 89 or higher on that year's exam. The  plaintiff class in a suit (Lewis v. Chicago)  under Title VII of the Civil Rights Act of 1964  contends that the 1995 exam and related selection  criteria have had an unjustified disparate impact  on black applicants for firefighters' positions.  Plaintiffs were represented at the outset by  Judson H. Miner and Bridget Arimond (both  affiliated with Miner, Barnhill & Galland) plus  three attorneys affiliated with the NAACP Legal  Defense and Education Fund or the Chicago  Lawyers' Committee for Civil Rights Under Law.  But the district court has disqualified Miner and  Arimond from continuing to represent the class,  which asks us to issue a writ of mandamus  reinstating them.


2
Plaintiffs seek mandamus because an order  disqualifying counsel in civil litigation is not  immediately appealable as a collateral order.  Richardson-Merrell Inc. v. Koller, 472 U.S. 424  (1985), reaffirmed in Cunningham v. Hamilton  County, 527 U.S. 198, 119 S. Ct. 1915 (1999)  (disqualification coupled with monetary sanction  not immediately appealable). See also Flanagan v.  United States, 465 U.S. 259 (1984) (order  disqualifying defense counsel in criminal case  not immediately appealable); Firestone Tire &  Rubber Co. v. Risjord, 449 U.S. 368 (1981) (order  declining to disqualify counsel not immediately  appealable). Despite Richardson-Merrell and  Cunningham, plaintiffs have proceeded much as if  mandamus were an interlocutory appeal by another  name. They contend that we should exercise de  novo review and substitute our judgment for the  district judge's, which we wouldn't do even on  appeal. "If review by means of mandamus means the  same thing as review by means of appeal, however,  the Supreme Court . . . may have accomplished  little or nothing except to rename 'appeal' 'mandamus.'"  In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.  1992). Richardson-Merrell and its cousins are not  so easily evaded. Although the Court suggested in  Richardson-Merrell that mandamus could be  appropriate, it reiterated Firestone's conclusion  (449 U.S. at 378-79 n.13) that only "exceptional  circumstances" could justify use of that writ.  472 U.S. at 435. See also Cunningham, 119 S. Ct.  at 1923 (Kennedy, J., concurring) (mandamus may  be justified to avoid "an exceptional hardship  itself likely to cause an injustice"). We must  therefore inquire whether disqualification of  Miner and Arimond is likely to cause irreparable  injury to the class and, if so, whether the  district judge has committed such a clear error  that issuance of a peremptory writ is justified.


3
Miner, Barnhill & Galland is a small law firm  specializing in employment-discrimination  litigation. Many persons affiliated with the firm  have national reputations for quality work on  plaintiffs' behalf. Perhaps this reputation led  to Miner's appointment as Chicago's Corporation  Counsel, a position in which he served between  1986 and 1989. Arimond represented the City from  1988 to 1989 as Special Deputy Corporation  Counsel for Affirmative Action. Both Arimond and  Miner devoted a great deal of time to testing,  hiring, and the many long-running disputes that  have grown out of the City's staffing of its  police and firefighting forces. Chicago  understandably is unhappy that its former lawyers  now represent its adversaries in litigation, but  no rule of law perpetually disqualifies lawyers  for a public entity from suing their former  clients. What Chicago contends--what the district  judge found to be true--is that during their  stints as the City's principal lawyers for  employment-discrimination matters, Miner and  Arimond had many long and detailed conversations  with Robert T. Joyce and Donald Stensland.  Between March 1981 and July 1998 Joyce was the  Deputy Commissioner of the Employment Services  Division of the City's Department of Personnel.  Since May 1987 Stensland has been Deputy  Commissioner of the Chicago Fire Department; from  1981 to 1987 he was the Fire Department's  Director of Labor Relations. Chicago believes  that Joyce and Stensland provided Miner and  Arimond with privileged information about the  City's hiring practices and about their attitudes  toward hiring decisions, information that Miner  and Arimond could turn to plaintiffs' advantage  in this litigation if Joyce or Stensland  testifies (or otherwise provides evidence) about  the development of the 1995 test, the selection  of the cutoff score, and related decisions made  on their watch. Plaintiffs do not deny that Miner  and Arimond possess information covered by the  attorney-client privilege; they contend, however,  that Joyce and Stensland are bureaucrats who lack  knowledge useful in a disparate-impact case.  Evidence will come from test designers and  statisticians, plaintiffs insist, so there will  be no opportunity to use against the City any  privileged information provided by Joyce and  Stensland. Instead of resolving the parties'  dispute about the likely course of the  litigation, the district court concluded that  disqualification is the safest course because it  precludes the possibility of using or divulging  privileged information.


4
Plaintiffs say that this precautionary decision  causes them irreparable injury, which justifies  a writ of mandamus. To the extent they locate  this injury in the costs of trial (should retrial  ensue after a successful appeal), they run  headlong into Richardson-Merrell, Cunningham,  Flanagan, and many other cases holding that the  financial costs of litigation are not  "irreparable injury." See, e.g., Petroleum  Exploration, Inc. v. Public Service Commission,  304 U.S. 209, 222 (1938); Renegotiation Board v.  Bannercraft Clothing Co., 415 U.S. 1, 24 (1974);  FTC v. Standard Oil Co., 449 U.S. 232, 244  (1980); PaineWebber Inc. v. Farnam, 843 F.2d 1050  (7th Cir. 1988). Many an interlocutory order--  denials of summary judgment and decisions  concerning discovery prominent among them--may  occasion substantial expense and second trials,  but they are not on that account immediately  reviewable. See Reise v. University of Wisconsin,  957 F.2d 293 (7th Cir. 1992). Even the disclosure  of privileged information in discovery has been  deemed inadequate to support mandamus. Kerr v.  United States District Court, 426 U.S. 394  (1976). Plaintiffs suggest that disqualification  may inflict irreparable injury because they may  find other good lawyers, so any error will turn  out to be harmless, but we do not see why the  absence of injury (that's what a finding of  harmless error means) should equate to  irreparable injury. Similar arguments were made  and rejected in Richardson-Merrell, Cunningham,  and Flanagan; they are no stronger when the label  changes from "appeal" to "mandamus." Employment-  discrimination litigation under Title VII is  unlikely to inflict financial injury on  plaintiffs with meritorious claims, because  attorneys' fees for prevailing plaintiffs are  shifted to employers. If plaintiffs must try  their case twice (with an appeal in between) to  vindicate their rights, then the employer will  pay a legal bill twice as steep; plaintiffs' net  recovery will be unaffected.


5
To the extent plaintiffs locate irreparable  injury in the damage to their lawyers'  reputation--in the implication that Miner and  Arimond would violate their ethical duties and  use privileged information against their former  client--again Richardson-Merrell and Cunningham  supply the answer. In Cunningham the judge found  that counsel had behaved unethically (and  incompetently) and imposed monetary sanctions,  yet the Court held this an inadequate basis of  immediate review. See also Richardson-Merrell,  472 U.S. at 435.


6
One other kind of irreparable injury remains to  be considered. Perhaps disqualification will  cause the plaintiff class real harm in the sense  of hampering its chance of vindicating a  legitimate claim, but this injury will be  impossible to establish because it is so hard to  evaluate the benefits of legal expertise and  know, even in retrospect, the destinations of  paths untaken. Then erroneous disqualification  will lead to a loss on the merits (or lesser  damages), and the judgment will be affirmed in  the end. Real but hard-to-quantify loss is a  standard form of irreparable injury, one that has  twice led us to issue writs of mandamus to  reinstate disqualified lawyers. See Sandahl; In  re Barnett, 97 F.3d 181 (7th Cir. 1996).  Plaintiffs contend that they are at risk of this  kind of injury because Miner and Arimond are  exceptional lawyers who will prove hard to  replace in contingent-fee litigation. Yet the  class already has three other lawyers and the  backing of two substantial civil-rights  litigation groups. These three lawyers can carry  on with the benefit of work already done and  experts already hired, and we think it likely  that the NAACP Legal Defense and Education Fund  and the Chicago Lawyers' Committee for Civil  Rights Under Law can recruit other fine lawyers  to augment their efforts. Miner and Arimond have  contributed their expertise to crafting the  theory of the case and conducting discovery; the  fruits of these labors can be enjoyed by the  plaintiff class, without risk of disclosing or  using confidences should Joyce or Stensland  become witnesses.


7
Although this is not a completely satisfactory  response-- maybe it shows only that we have been  unable to detect what is, by definition, hard-to-  detect injury--it is difficult to press too far  with this theory of irreparable harm without  overturning Richardson-Merrell in effect though  not in name. For similar claims may be made  almost every time a lawyer is disqualified. To  accept them unblinkingly would be to authorize  ready interlocutory review. Sandahl accordingly  concluded that only "patently erroneous"  disqualification orders may be undone by  mandamus. 980 F.2d at 1121. Instead of providing  the kind of immediate appellate review that  Richardson-Merrell and Cunningham disapprove, a  court can accommodate this possibility by careful  review on an ultimate appeal. Chicago insists  that the plaintiff class does not suffer  irreparable injury because any error is  reviewable eventually. Let us take Chicago at its  word. If, at the conclusion of the case, the  panel concludes that Miner and Arimond should not  have been disqualified, Chicago will bear the  burden of establishing the absence of the kind of  irreparable harm we have been discussing. Chicago  is taking a risk, because if the district judge  is wrong about disqualification then Chicago can  lose at trial but may be unable to hold onto a  victory, but at oral argument the City insisted  that this is a risk it is willing to bear.


8
Just as a judge asked to issue a preliminary  injunction must balance the costs of error,  ensuring that the costs of false positives  (preliminary relief wrongly issued) do not exceed  the costs of false negatives (relief wrongly  denied), see Illinois Bell Telephone Co. v.  WorldCom Technologies, Inc., 157 F.3d 500 (7th  Cir. 1998), so a court of appeals must balance  error costs. A shortfall in the predicted size of  irreparable injury may be overcome by a  substantial likelihood of error--for if the  district judge has committed an obvious blunder,  then immediate correction benefits both sides,  without undermining application of the final-  decision rule for closer cases. Thus if the  district judge had committed the sin of which  plaintiffs accuse her--precluding public  employees from ever representing a governmental  body's adversaries after they leave office--we  would issue a writ to correct the patent error.  Both Sandahl and Barnett involved similarly  obvious blunders by the district courts, blunders  that imposed pointless costs on litigants. This  case does not. The district judge did not apply  a categorical rule of disqualification but  stressed that Joyce and Stensland remained in  responsible positions when the 1995 test was  devised and used.


9
Of course if, as plaintiffs contend, Joyce and  Stensland have no useful evidence to present,  then Miner and Arimond should not have been  disqualified. But whether they have evidence  cannot be determined a priori. It remains to be  seen what evidence they have. Plaintiffs  apparently believe that only expert evidence  matters to a disparate-impact case. Chicago  believes otherwise; it thinks that the provenance  of the 1995 test is important--that the test was  designed to overcome problems identified in the  past and that its virtues (or demerits) can be  understood only against that background, a  background that Joyce and Stensland discussed in  confidence with Miner and Arimond. If that is so,  then Joyce or Stensland may have useful evidence,  and the confidences might become important.


10
Disputes of this sort illuminate the virtues of  the final-decision rule. Instead of trying to  predict how the trial will play out, we defer  review until the end, when we can see how matters  did play out. What a mess it would be if we were  to issue a writ of mandamus reinstating Miner and  Arimond, and then both Joyce and Stensland give  significant testimony. But if, as plaintiffs  predict, Joyce and Stensland have nothing to  contribute, and Chicago has been crying wolf,  then at the end of the case plaintiffs will have  a powerful appellate issue. As we have said,  however, Chicago is willing to take that risk.


11
The petition for a writ of mandamus is denied,  without prejudice to consideration of all  disqualification issues on appeal from the final  decision.

