In re A. L. Lewis, 99-3983

• Decision Date: 11 May 2000
• Docket Number: No. 99-3983,99-3983
• Citation: 212 F.3d 980
• Parties: (7th Cir. 2000) In re Arthur L. Lewis, Jr., et al., Petitioners
• Court: U.S. Court of Appeals — Seventh Circuit

Page 980

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, 2000

Decided 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.

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...