In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3983

In re Arthur L. Lewis, Jr., et al.,

Petitioners.



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.


Argued March 28, 2000--Decided May 11, 2000



  Before Easterbrook, Manion, and Evans, Circuit Judges.


  Easterbrook, Circuit Judge. 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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

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