We consider a petition for a writ of mandamus arising from a magistrate judge's sanction of disqualification imposed on petitioners' counsel by revocation of counsel's pro hac vice status. Petitioners demonstrate that the magistrate judge clearly erred in imposing this sanction without giving petitioners' counsel notice and an opportunity to be heard on the specific grounds for disqualification and revocation of counsel's pro hac vice status. But because mandamus is an extraordinary remedy and petitioners did not take advantage of an available remedy by seeking review of the magistrate judge's decision before the district court, we deny the petition.

* The request for mandamus relief follows an order disqualifying petitioners' lead counsel, Kenneth D. Simoncini, in a case scheduled for trial. The disqualification order resolved a motion brought by the defendants (captioned here as "Real Parties in Interest") to disqualify Simoncini on grounds not relevant to this appeal.1

On May 2, 2003, after a hearing on the motion to disqualify, Magistrate Judge Boyle ordered the plaintiffs and Simoncini to submit affidavits for in camera review. The purpose of the ordered affidavits was to provide the magistrate judge with the necessary factual basis on which to rule on the disqualification motion.

Though the petitioners submitted the required affidavits on May 20, 2003, the cover letter to their submission informed the magistrate judge that Simoncini respectfully declined to submit an affidavit. On June 4, 2003, the magistrate judge ordered the three plaintiffs and counsel to state under oath the date or dates the "Conflict of Interest and Client Consent to Representation Waiver of Conflict" forms were executed.

On July 18, 2003, the magistrate judge issued the memorandum decision and order that prompted petitioners to file the mandamus petition now before us. In that decision, the magistrate judge rejected every ground advanced by the defendants to disqualify Simoncini. However, the magistrate judge decided sua sponte to sanction Simoncini because he had failed to provide the affidavit that he was ordered, but "declined," to submit. Citing District of Idaho Local Rule 83.5(b), governing discipline, and 18 U.S.C. § 401(3), governing contempt, the court expressed concern that Simoncini might refuse future orders, stated that Simoncini's pro hac vice status was a "conditional admission," and decided that it was appropriate to disqualify Simoncini and revoke his pro hac vice admission, in light of counsel's knowing disregard of the court's prior order.2 The magistrate judge then so ordered.

Petitioners, who had formerly been represented by Simoncini, did not move for the magistrate judge to reconsider his order. Petitioners did not file a motion in the district court seeking reconsideration of the magistrate judge's order by the district court, which was a statutorily available remedy under 28 U.S.C. § 636(b)(1)(A). Instead, the petitioners bypassed reconsideration by the district court and immediately filed in our court the petition for a writ of mandamus. We have jurisdiction over this original action seeking a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651, and we deny the petition.

The rule is that a writ of mandamus may be used to review the disqualification of counsel. See Christensen v. United States Dist. Court, 844 F.2d 694, 697 & n. 5 (9th Cir.1988). The reason is because the harm of such disqualification cannot be corrected with an ordinary appeal. Id. Whether a writ of mandamus should be granted is determined case-by-case, weighing the factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977).3 These are whether (1) the party seeking the writ has no other means, such as a direct appeal, of attaining the desired relief, (2) the petitioner will be damaged in a way not correctable on appeal, (3) the district court's order is clearly erroneous as a matter of law, (4) the order is an oft-repeated error, or manifests a persistent disregard of the federal rules, and (5) the order raises new and important problems, or issues of law of first impression. Id. at 654-55. The Bauman factors should not be mechanically applied. See Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989). Evidence showing that all the Bauman factors are affirmatively presented by a case does not necessarily mandate the issuance of a writ, nor does a showing of less than all, indeed of only one, necessarily mandate denial; instead, the decision whether to issue the writ is within the discretion of the court. See Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976).

* The first Bauman factor highlights the need for mandamus to be used only when no other realistic alternative is (or was) available to a petitioner. See, e.g., Varsic v. United States Dist. Court, 607 F.2d 245, 251 (9th Cir.1979). This factor is affirmatively presented in the context of a disqualification of counsel when the petition arises from the action of a district court. See Christensen, 844 F.2d at 697 (noting that an order disqualifying counsel is not a collateral order subject to immediate attack and that the petitioner can never obtain the relief sought, i.e., maintaining the disqualified counsel for pending litigation, through a direct appeal). Parties normally have the right to counsel of their choice, so long as the counsel satisfy required bar admissions, and it is no small thing to disqualify a counsel before trial. Absent mandamus relief, a counsel's wrongful disqualification, which cannot be immediately appealed, can cause great harm to a litigant. This harm cannot be corrected by the ordinary appellate process because that occurs after the trial has been held, when it is too late to replace the counsel. This is why the rule of Christensen, permitting mandamus relief after a disqualification of counsel by a district court, makes good sense.

Unlike Christensen, however, this case concerns a disqualification order made by a magistrate judge acting on authority delegated by, and subject to the supervision of, the district court. The defendants argue that the petitioners could have appealed the magistrate judge's order to the district court.4

Defendants' argument has force. It is uncontested that petitioners could have, but did not, move for reconsideration of the magistrate judge's ruling with the district court pursuant to 28 U.S.C. § 636(b)(1)(A).5 The petitioners cannot now seek reconsideration of the magistrate judge's order pursuant to this statute. See Fed.R.Civ.P. 72(a). The Bauman factor assessing whether a party has "no other means" to gain the desired relief is not presented here.6 Petitioners had an absolute right to seek district court reconsideration of the magistrate judge's decision. Were we to ignore this simple and direct route open to petitioners for review of the disqualification order, we would be improperly placing our court, rather than the district court, in the role of supervising the magistrate judge's decisions. Petitioners had a ready remedy with the district court, but did not pursue it.7

Petitioners' failure to submit this disqualification issue to the district court, where review was automatic, gravely weakens the petitioners' case for the writ of mandamus. The need to show the lack of an available remedy absent a writ of mandamus goes to the heart of this extraordinary remedy which should be sparingly employed. See Kerr, 426 U.S. at 403, 96 S. Ct. 2119 (holding that "as a means of implementing the rule that the writ will issue only in extraordinary circumstances," the party seeking the writ must "have no other adequate means to attain the relief he desires"). In the ordinary course, the district courts, and not the courts of appeals, are to be called on, in the first instance, to correct any clear error in the decision of a magistrate judge on non-dispositive matters, for this is the role that Congress has created for district courts.8

A consideration of extra-circuit case law reinforces our conclusion. In Califano v. Moynahan, 596 F.2d 1320 (6th Cir.1979), the Sixth Circuit addressed a petition for a writ of mandamus to direct the district court to rescind a permanent order directing social security disability appeals to a magistrate judge. Califano required that "the party seeking issuance of the writ have no other adequate means to attain the relief he desires...." Id. at 1321 (quoting Kerr, 426 U.S. at 403, 96 S. Ct. 2119). The Sixth Circuit noted that, pursuant to 28 U.S.C. § 636(b)(1)(A), the petitioner could have, but did not, move for reconsideration of the decision of the magistrate judge. Id. It held that the argument advanced on appeal via the mandamus petition "was the type of argument which ought to have been made to the district court.... We decline to employ the extraordinary remedy of mandamus to require a district judge to do that which he was never asked to do in a proper way in the first place." Id. at 1322.

The First Circuit held to like effect in United States v. Ecker, 923 F.2d 7 (1st Cir.1991). In that case, a magistrate judge found Ecker incompetent to stand trial, but ordered confinement to determine if Ecker was likely to attain the capacity to be tried in the near future. Id. at 8. Ecker directly appealed to the First Circuit. The First Circuit treated the notice of appeal, alternatively, as a petition for mandamus. The court noted that treating the notice of appeal as a petition for a writ of mandamus did not "account [] successfully for the near-absolute jurisdictional requirement that magistrates' orders be reviewed in the first instance by the district court." Id. at 9. The court continued, "[m]andamus should be dispensed sparingly and only in pursuance of the most carefully written prescription, not made available over the counter, on casual demand.... If Ecker wanted a writ of mandamus directing the magistrate to rescind his commitment order ... he should have directed his arguments to the district court originally." Id. at 9 (internal citations and quotation marks omitted).9

We hold as a general rule that if a petitioner for a writ of mandamus does not seek reconsideration of a magistrate judge's order with the district court pursuant to 28 U.S.C. § 636(b)(1)(A), then we will find the first Bauman factor has not been affirmatively presented. This general rule may give way to an exception if the petitioner can convincingly demonstrate that reconsideration by the district court would have been futile. Apart from this necessarily narrow exception, failure to seek reconsideration of a magistrate judge's non-dispositive ruling by statutory appeal to the district court under 28 U.S.C. § 636(b)(1)(A) will preclude a finding that the first Bauman factor is shown, which, in turn, will weigh heavily against the granting of the writ.10

At oral argument, petitioners argued that appeal to the district court was futile because the district court assigned the attorney disqualification motion to the magistrate judge. The petitioners argue to us that this assignment implied that the district court was disinterested in the merits of the underlying disqualification motion. That argument has no merit in light of the district court's ability to assign nearly any non-dispositive motion to a magistrate judge, 28 U.S.C. § 636(b)(1)(A), and the district court's corresponding statutory duty to reconsider for correction of clear error. The petitioners' argument falls far short of the convincing evidence needed to invoke the futility exception. We hold that the first Bauman factor is not presented here, counseling against granting the writ.

We next address the second Bauman factor: whether petitioners will be damaged in a way not correctable through ordinary appeal. This factor is readily shown under the authority of Christensen, 844 F.2d at 697(holding that attorney disqualification satisfies the second Bauman factor). The damage in this case includes the petitioners' loss of a lead counsel who has been on the case for more than six years. And if Simoncini's knowledge could be gained by another counsel, another attorney still may not gain the same quality of attorney-client relationship and rapport that Simoncini evidently had with petitioners. Except for compelling reasons, such as necessary bar admissions, clients should be permitted to have the counsel of their choice. A lost choice of counsel at trial cannot be remedied on direct appeal. These same concerns were expressed in Christensen. Id. ("Theoretically, Christensen could appeal the disqualification of his counsel after trial. He could not, however, obtain the desired relief on direct appeal because he seeks to be represented by his chosen counsel at trial. Once a new attorney is brought in, the effect of the order is irreversible.").

We next analyze the third Bauman factor, whether there was clear error. Absence of this factor is often dispositive of the petition. We have said that clear error is, if not necessary, a "highly significant" factor. Merle Norman Cosmetics, Inc. v. United States Dist. Court, 856 F.2d 98, 100 (9th Cir.1988); see In re Grand Jury Investigation, 182 F.3d 668, 670 (9th Cir.1999).

This factor weighs on the petitioners' side of the scale. Though we sympathize with the magistrate judge's concern that counsel should not have disregarded a court order, and had alternate ways to challenge the order other than "declin[ing]" to submit the affidavit, nonetheless the process that was due demanded something more. The magistrate judge clearly erred by not affording procedural due process when imposing the sanction on Simoncini, who was not given notice that he might lose representation over his refusal to file an ordered affidavit, and was not given an opportunity to present argument. Ninth Circuit law does not permit a summary disqualification of counsel; for the court to sanction an attorney, procedural due process requires notice and an opportunity to be heard. See Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir.2000) ("[A]n attorney subject to discipline is entitled to procedural due process, including notice and an opportunity to be heard.") (quoting Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1198 (9th Cir.1999)); see also Martens v. Thomann, 273 F.3d 159, 175 (2d Cir.2001) ("We have held that due process requires that courts provide notice and an opportunity to be heard before imposing any kind of sanctions.") (internal quotation marks omitted). The disqualification of Simoncini and revocation of his pro hac vice status is, as the magistrate judge conceded, a sanction. See also Martens, 273 F.3d at 175 ("[R]evocation of pro hac vice status is a form of sanction that cannot be imposed without notice and an opportunity to be heard.").

The magistrate judge doubtless felt that counsel was on general notice that representation and disqualification were at issue, but the magistrate judge gave no specific notice to Simoncini that the court was considering a sanction for Simoncini's failure to submit the required affidavit, nor that counsel might be disqualified on that ground rather than on the theories asserted by the defendants. In the May 20, 2003, cover letter to the petitioners' required affidavits, Marilynn Winter stated "Mr. Simoncini has respectfully declined to submit an affidavit." We do not assume that counsel can justify this approach. Nonetheless, an appropriate procedure would have been for the magistrate judge to order Simoncini to show cause why he should not be disqualified to serve as counsel in the district court by admission pro hac vice if he would not abide the orders of the court. The magistrate judge did not advise Simoncini that the failure could lead to a sanction of loss of pro hac vice admission to practice before the district court, and did not hear Simoncini on this issue. It is axiomatic that procedural due process requires notice of the grounds for, and possible types of, sanctions. See Weissman, 179 F.3d at 1198 n. 4 (9th Cir.1999).

Moreover, that Simoncini was admitted pro hac vice is of no relevance to the requisite amount of notice required. See, e.g., United States v. Collins, 920 F.2d 619, 626 (10th Cir.1990) ("Attorneys admitted pro hac vice are held to the same professional responsibilities and ethical standards as regular counsel. Once admitted, pro hac vice counsel cannot be disqualified under standards and procedures any different or more stringent than those imposed upon regular members of the district court bar."); Martens, 273 F.3d at 175-76(citing Collins to hold that pro hac vice counsel are entitled to notice and an opportunity to be heard before the sanction of disqualification is imposed); Kirkland v. Nat'l Mortgage Network, 884 F.2d 1367, 1371 (11th Cir.1989); Koller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1054(D.C.Cir.1984), vacated on other grounds, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985). We have adopted this rule. See United States v. Ries, 100 F.3d 1469, 1471 (9th Cir.1996) ("Pro hac vice counsel, `[o]nce admitted, ... cannot be disqualified under standards and procedures any ... more stringent than those imposed upon [members of the local bar].'") (quoting Collins, 920 F.2d at 626) (alteration by brackets in original). Pro hac vice counsel, once admitted, are entitled to notice and an opportunity to respond before being disqualified and having their status revoked. See Johnson v. Trueblood, 629 F.2d 302, 303-04 (3d Cir.1980).

This case is similar to Weissman v. Quail Lodge, Inc., 179 F.3d 1194 (9th Cir.1999). In Weissman, an attorney (Schonbrun) was ordered to refrain from filing objections to a class-action settlement because he had failed to submit a required document proving that his client was a member of the class. We held that:

[w]henever the district court imposes sanctions on an attorney, it must at a minimum, afford the attorney notice and an opportunity to be heard. In the instant case, the district court did not give Schonbrun notice or an opportunity to be heard prior to sanctioning him. Therefore, the district court abused its discretion in imposing the sanction.

Id. at 1198 (internal citation and footnote omitted). We recognized that notice required more than that Schonbrun be aware of the sanctionable conduct, but that the district court must provide notice of the potential sanctions and the reasons for the sanction. Id. at 1198 n. 4. We reversed the order of the district court, finding it to be an abuse of discretion. Id. at 1198.11

The same rule applies here. The magistrate judge had cause to consider and perhaps impose the sanction given, but it was clear error for the magistrate judge to order the sanction without providing requisite notice and opportunity to respond.12 Because the procedural error was so clear, we conclude that the third Bauman factor points strongly in favor of granting the petition.

Although we have concluded that the third Bauman factor favors granting the petition, even the undoubted strength of this factor is undermined by the petitioners' failure to seek reconsideration in the district court. Important to our determination is the Supreme Court's guidance that "the party seeking issuance of the writ [of mandamus] have no other adequate means to attain the relief he [or she] desires." Kerr, 426 U.S. at 403, 96 S. Ct. 2119. Mandamus is an extraordinary writ to be sparingly used, id. at 402, 96 S. Ct. 2119, and the petitioners must demonstrate an entitlement to mandamus relief that is "clear and indisputable." Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 98 S. Ct. 2552, 57 L. Ed. 2d 504 (1978). Petitioners, in this case, had a ready route and were obligated to travel it in seeking reconsideration before the district court. That petitioners' did not avail themselves of review in the district court strongly counsels against our issuing the writ. When review of a decision of a magistrate judge is available as a matter of right by motion for reconsideration before a district court, the opportunity should be taken before extraordinary review by mandamus is sought. The availability of relief that was forgone by the petitioners and a careful consideration of all the other Bauman factors13 presented do not in sum present a compelling case for the issuance of a writ of mandamus. We will not so lightly interfere in the delicate relationship between the district courts and magistrate judges, where a party has deliberately bypassed a customary means of review. To that end, despite the clear error of the magistrate judge, the availability of relief that was forgone shows that the petitioners' asserted right to mandamus relief is not "clear and indisputable." Bauman, 557 F.2d at 656. The petitioners have not carried their burden, and we thus conclude that we should deny, and we hereby deny, the petition for the writ of mandamus.14

DENIED.