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." Employmentdiscrimination 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-todetect 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 finaldecision 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.