The full case caption appears at the
end of this opinion. Chicago hiresfirefighters on the basis of a competitiveexamination plus additional criteria applied tothose who achieve a passing score. During thelast four years Chicago has been hiring from alist created in 1995; the list includes those whoscored 89 or higher on that year’s exam. Theplaintiff class in a suit (Lewis v. Chicago)under Title VII of the Civil Rights Act of 1964contends that the 1995 exam and related selectioncriteria have had an unjustified disparate impacton black applicants for firefighters’ positions.Plaintiffs were represented at the outset byJudson H. Miner and Bridget Arimond (bothaffiliated with Miner, Barnhill & Galland) plusthree attorneys affiliated with the NAACP LegalDefense and Education Fund or the ChicagoLawyers’ Committee for Civil Rights Under Law.But the district court has disqualified Miner andArimond from continuing to represent the class,which asks us to issue a writ of mandamusreinstating them. Plaintiffs seek mandamus because an orderdisqualifying counsel in civil litigation is notimmediately appealable as a collateral order.Richardson-Merrell Inc. v. Koller, 472 U.S. 424(1985), reaffirmed in Cunningham v. HamiltonCounty, 527 U.S. 198, 119 S. Ct. 1915 (1999)(disqualification coupled with monetary sanctionnot immediately appealable). See also Flanagan v.United States, 465 U.S. 259 (1984) (orderdisqualifying defense counsel in criminal casenot immediately appealable); Firestone Tire &Rubber Co. v. Risjord, 449 U.S. 368 (1981) (orderdeclining to disqualify counsel not immediatelyappealable). Despite Richardson-Merrell andCunningham, plaintiffs have proceeded much as ifmandamus were an interlocutory appeal by anothername. They contend that we should exercise denovo review and substitute our judgment for thedistrict judge’s, which we wouldn’t do even onappeal. “If review by means of mandamus means thesame thing as review by means of appeal, however,the Supreme Court . . . may have accomplishedlittle or nothing except to rename ‘appeal’ ‘mandamus.’”In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.1992). Richardson-Merrell and its cousins are notso easily evaded. Although the Court suggested inRichardson-Merrell that mandamus could beappropriate, it reiterated Firestone’s conclusion(449 U.S. at 378-79 n.13) that only “exceptionalcircumstances” could justify use of that writ.472 U.S. at 435. See also Cunningham, 119 S. Ct.at 1923 (Kennedy, J., concurring) (mandamus maybe justified to avoid “an exceptional hardshipitself likely to cause an injustice”). We musttherefore inquire whether disqualification ofMiner and Arimond is likely to cause irreparableinjury to the class and, if so, whether thedistrict judge has committed such a clear errorthat issuance of a peremptory writ is justified. Miner, Barnhill & Galland is a small law firmspecializing in employment-discriminationlitigation. Many persons affiliated with the firmhave national reputations for quality work onplaintiffs’ behalf. Perhaps this reputation ledto Miner’s appointment as Chicago’s CorporationCounsel, a position in which he served between1986 and 1989. Arimond represented the City from1988 to 1989 as Special Deputy CorporationCounsel for Affirmative Action. Both Arimond andMiner devoted a great deal of time to testing,hiring, and the many long-running disputes thathave grown out of the City’s staffing of itspolice and firefighting forces. Chicagounderstandably is unhappy that its former lawyersnow represent its adversaries in litigation, butno rule of law perpetually disqualifies lawyersfor a public entity from suing their formerclients. What Chicago contends–what the districtjudge found to be true–is that during theirstints as the City’s principal lawyers foremployment-discrimination matters, Miner andArimond had many long and detailed conversationswith Robert T. Joyce and Donald Stensland.Between March 1981 and July 1998 Joyce was theDeputy Commissioner of the Employment ServicesDivision of the City’s Department of Personnel.Since May 1987 Stensland has been DeputyCommissioner of the Chicago Fire Department; from1981 to 1987 he was the Fire Department’sDirector of Labor Relations. Chicago believesthat Joyce and Stensland provided Miner andArimond with privileged information about theCity’s hiring practices and about their attitudestoward hiring decisions, information that Minerand Arimond could turn to plaintiffs’ advantagein this litigation if Joyce or Stenslandtestifies (or otherwise provides evidence) aboutthe development of the 1995 test, the selectionof the cutoff score, and related decisions madeon their watch. Plaintiffs do not deny that Minerand Arimond possess information covered by theattorney-client privilege; they contend, however,that Joyce and Stensland are bureaucrats who lackknowledge useful in a disparate-impact case.Evidence will come from test designers andstatisticians, plaintiffs insist, so there willbe no opportunity to use against the City anyprivileged information provided by Joyce andStensland. Instead of resolving the parties’dispute about the likely course of thelitigation, the district court concluded thatdisqualification is the safest course because itprecludes the possibility of using or divulgingprivileged information. Plaintiffs say that this precautionary decisioncauses them irreparable injury, which justifiesa writ of mandamus. To the extent they locatethis injury in the costs of trial (should retrialensue after a successful appeal), they runheadlong into Richardson-Merrell, Cunningham,Flanagan, and many other cases holding that thefinancial costs of litigation are not”irreparable injury.” See, e.g., PetroleumExploration, 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 decisionsconcerning discovery prominent among them–mayoccasion substantial expense and second trials,but they are not on that account immediatelyreviewable. See Reise v. University of Wisconsin,957 F.2d 293 (7th Cir. 1992). Even the disclosureof privileged information in discovery has beendeemed inadequate to support mandamus. Kerr v.United States District Court, 426 U.S. 394(1976). Plaintiffs suggest that disqualificationmay inflict irreparable injury because they mayfind other good lawyers, so any error will turnout to be harmless, but we do not see why theabsence of injury (that’s what a finding ofharmless error means) should equate toirreparable injury. Similar arguments were madeand rejected in Richardson-Merrell, Cunningham,and Flanagan; they are no stronger when the labelchanges from “appeal” to “mandamus.” Employment-discrimination litigation under Title VII isunlikely to inflict financial injury onplaintiffs with meritorious claims, becauseattorneys’ fees for prevailing plaintiffs areshifted to employers. If plaintiffs must trytheir case twice (with an appeal in between) tovindicate their rights, then the employer willpay a legal bill twice as steep; plaintiffs’ netrecovery will be unaffected. To the extent plaintiffs locate irreparableinjury in the damage to their lawyers’reputation–in the implication that Miner andArimond would violate their ethical duties anduse privileged information against their formerclient–again Richardson-Merrell and Cunninghamsupply the answer. In Cunningham the judge foundthat counsel had behaved unethically (andincompetently) and imposed monetary sanctions,yet the Court held this an inadequate basis ofimmediate review. See also Richardson-Merrell,472 U.S. at 435. One other kind of irreparable injury remains tobe considered. Perhaps disqualification willcause the plaintiff class real harm in the senseof hampering its chance of vindicating alegitimate claim, but this injury will beimpossible to establish because it is so hard toevaluate the benefits of legal expertise andknow, even in retrospect, the destinations ofpaths untaken. Then erroneous disqualificationwill lead to a loss on the merits (or lesserdamages), and the judgment will be affirmed inthe end. Real but hard-to-quantify loss is astandard form of irreparable injury, one that hastwice led us to issue writs of mandamus toreinstate disqualified lawyers. See Sandahl; Inre Barnett, 97 F.3d 181 (7th Cir. 1996).Plaintiffs contend that they are at risk of thiskind of injury because Miner and Arimond areexceptional lawyers who will prove hard toreplace in contingent-fee litigation. Yet theclass already has three other lawyers and thebacking of two substantial civil-rightslitigation groups. These three lawyers can carryon with the benefit of work already done andexperts already hired, and we think it likelythat the NAACP Legal Defense and Education Fundand the Chicago Lawyers’ Committee for CivilRights Under Law can recruit other fine lawyersto augment their efforts. Miner and Arimond havecontributed their expertise to crafting thetheory of the case and conducting discovery; thefruits of these labors can be enjoyed by theplaintiff class, without risk of disclosing orusing confidences should Joyce or Stenslandbecome witnesses. Although this is not a completely satisfactoryresponse– maybe it shows only that we have beenunable to detect what is, by definition, hard-to-detect injury–it is difficult to press too farwith this theory of irreparable harm withoutoverturning Richardson-Merrell in effect thoughnot in name. For similar claims may be madealmost every time a lawyer is disqualified. Toaccept them unblinkingly would be to authorizeready interlocutory review. Sandahl accordinglyconcluded that only “patently erroneous”disqualification orders may be undone bymandamus. 980 F.2d at 1121. Instead of providingthe kind of immediate appellate review thatRichardson-Merrell and Cunningham disapprove, acourt can accommodate this possibility by carefulreview on an ultimate appeal. Chicago insiststhat the plaintiff class does not sufferirreparable injury because any error isreviewable eventually. Let us take Chicago at itsword. If, at the conclusion of the case, thepanel concludes that Miner and Arimond should nothave been disqualified, Chicago will bear theburden of establishing the absence of the kind ofirreparable harm we have been discussing. Chicagois taking a risk, because if the district judgeis wrong about disqualification then Chicago canlose at trial but may be unable to hold onto avictory, but at oral argument the City insistedthat this is a risk it is willing to bear. Just as a judge asked to issue a preliminaryinjunction must balance the costs of error,ensuring that the costs of false positives(preliminary relief wrongly issued) do not exceedthe costs of false negatives (relief wronglydenied), see Illinois Bell Telephone Co. v.WorldCom Technologies, Inc., 157 F.3d 500 (7thCir. 1998), so a court of appeals must balanceerror costs. A shortfall in the predicted size ofirreparable injury may be overcome by asubstantial likelihood of error–for if thedistrict 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 thedistrict judge had committed the sin of whichplaintiffs accuse her–precluding publicemployees from ever representing a governmentalbody’s adversaries after they leave office–wewould issue a writ to correct the patent error.Both Sandahl and Barnett involved similarlyobvious blunders by the district courts, blundersthat imposed pointless costs on litigants. Thiscase does not. The district judge did not applya categorical rule of disqualification butstressed that Joyce and Stensland remained inresponsible positions when the 1995 test wasdevised and used. Of course if, as plaintiffs contend, Joyce andStensland have no useful evidence to present,then Miner and Arimond should not have beendisqualified. But whether they have evidencecannot be determined a priori. It remains to beseen what evidence they have. Plaintiffsapparently believe that only expert evidencematters to a disparate-impact case. Chicagobelieves otherwise; it thinks that the provenanceof the 1995 test is important–that the test wasdesigned to overcome problems identified in thepast and that its virtues (or demerits) can beunderstood only against that background, abackground that Joyce and Stensland discussed inconfidence 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 ofthe final-decision rule. Instead of trying topredict how the trial will play out, we deferreview until the end, when we can see how mattersdid play out. What a mess it would be if we wereto issue a writ of mandamus reinstating Miner andArimond, and then both Joyce and Stensland givesignificant testimony. But if, as plaintiffspredict, Joyce and Stensland have nothing tocontribute, and Chicago has been crying wolf,then at the end of the case plaintiffs will havea 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 alldisqualification issues on appeal from the finaldecision.
In re: Lewis 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. Argued: March 28, 2000 Decided: May 11, 2000 Before: Easterbrook, Manion, and Evans, Circuit Judges.
