dissenting.
I respectfully dissent from the holding of the majority. I believe that an order denying appointment of counsel falls within the exception to the final-judgment rule of section 1291 created by the Supreme Court in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
In Cohen and subsequent cases, the Court set out a three-part test for determining when an interlocutory order is appealable: “the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 5. Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). I believe that a determination denying appointment of counsel meets those three conditions. Such a denial conclusively determines the disputed issue, and the issue of access to court-appointed counsel is plainly separate from the merits of the cause of action. According to the majority, however, the order in the case at bar does not satisfy the third condition set out by the Supreme Court.
The requirement that the order be “effectively unreviewable” after a final judgment was discussed further by the Court in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). In Firestone, the Court recognized that the purpose of the Cohen exception to the final-judgment rule was to allow immediate review in cases involving “ ‘an asserted right the legal and practical value of which could be destroyed if it were not vindicated before trial.’ ” Id. at 377, 101 S.Ct. at 675 (quoting United States v. McDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978)). The Court also restated the policy that “the finality requirement should ‘be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered.’ ” Id. 449 U.S. at 376, 101 S.Ct. at 674 (quoting Mathews v. Eldridge, 424 U.S. 319, 331 n.11, 96 S.Ct. 893, 901 n.11, 47 L.Ed.2d 18 (1976)).
The majority has found that denial of immediate review in the instant case would not result in the practical loss of the right at stake: “At worst, in those cases where the district court abuses its discretion in denying a request for appointment of counsel, it merely results in the delay caused by the need to retry the case.” At 1066-1067. I disagree with the majority’s characterization of the extent of the harm caused by denial of immediate review.
The Eighth Circuit in Hudak v. Curators of the University of Missouri, 586 F.2d 105, 106 (8th Cir. 1978), noted that “the harm [from an erroneous denial of appointment of counsel] can be irreparable on appeal of the final judgment.” The Third Circuit, considering the Supreme Court’s holding in Firestone, expressly found that an order denying appointment of counsel is effectively unreviewable on appeal from the final judgment. Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). I agree with the statement of the court in Ray that “a decision on appellant’s need for counsel must be made before the trial if it is to be of any practical effect to him.” Id.
In Firestone, the order at issue was the denial of a motion for disqualification of an *1068attorney. The Court held that it was effectively reviewable with the final judgment because if the motion was erroneously denied it could be remedied on appeal from the final judgment by vacating the judgment and ordering a new trial.1 The majority in the case at bar has found that an order denying appointment of counsel “is no less reviewable upon final judgment” than the order in Firestone, at 1066; in both cases, according to the majority, an erroneous ruling by the district court can be corrected by vacating the judgment and ordering a new trial. I disagree.
I believe that the situation in Firestone differs from the one before us in several significant respects. First, as the Court recognized in Firestone, see n.l, the moving party can seek sanctions other than disqualification if his motion is denied. The availability of alternative remedies has also been an important factor in other cases in which the Supreme Court has denied immediate review of collateral orders. See, e. g., United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940).2 In the instant case, there are no alternative remedies available to plaintiff to prevent or alleviate the harm of an erroneous denial of access to court-appointed counsel.
Second, the potential harm from the denial of a disqualification motion will rarely be as great as that from the erroneous denial of court-appointed counsel. Courts have long recognized the problems of the pro se litigant. See, e. g., Hudson v. Hardy, 412 F.2d 1091, 1094-95 (D.C.Cir.1968) (percuriam), rehearing, 424 F.2d 854 (D.C.Cir. 1970) (reaffirmed on the merits); Peterson v. Nadler, 452 F.2d 754, 758 (8th Cir. 1971) (per curiam); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960). A pro se litigant without legal training “has little hope of successfully prosecuting his case to a final resolution on the merits.” Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir. 1977). Thus, the pro se litigant, facing the slim prospect of success against a defendant represented by counsel, may feel pressured to compromise his substantive rights by settling on terms less favorable than those he could have negotiated had he been represented or by failing to pursue further any legal remedy for the violation of his rights. The result may often be that an impoverished litigant has less access to the courts than the litigant who can afford to retain counsel. Such a result is, in my opinion, inconsistent with the principle of equal justice for all persons. Therefore, I must conclude that the propriety of an order denying appointment of counsel is not effectively reviewable upon appeal from the final judgment and falls within that class of interlocutory orders that are “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225.3
*1069For the foregoing reasons, I would reach the merits of this appeal from the district court’s denial of plaintiff’s motion for appointment of counsel.
. The Court also noted that sanctions short of disqualification were available to the moving party, for example, a protective order restricting counsel’s ability to act in the litigation. Firestone, supra, 449 U.S. at 378 n.13, 101 S.Ct. at 676 n.13.
. In Ryan and Cobbledick, the Court refused to allow immediate appeal from “the denial of a motion to quash a subpoena because another avenue to review was open: the respondent could refuse to comply, litigate the contempt issue, then appeal if he loses that.” Ryan, supra, 402 U.S. at 532, 91 S.Ct. at 1581; Cobbledick, supra, 309 U.S. at 328, 60 S.Ct. at 542. Accord, Alexander v. United States, 201 U.S. 117, 121-22, 26 S.Ct. 356, 357-58, 50 L.Ed. 686 (1906).
. Such a holding would be consistent with the decisions of a majority of the circuits to consider the issue. Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981); Hudak v. Curators of the University of Missouri, 586 F.2d 105, 106 (8th Cir. 1978), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979); Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir. 1977); Miller v. Pleasure, 296 F.2d 283, 284 (2d Cir. 1961), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962). Accord, Jones v. WFYR Radio/RKO General, 626 F.2d 576, 576 n.* (7th Cir. 1980).
Only one circuit, other than this one, has found an order denying appointment of counsel not immediately appealable. Cotner v. U. S. Probation Officer Mason, 657 F.2d 1390 at 1391-1392 (10th Cir. 1981). In that case, how*1069ever, the court expressly found that “[ajppellant’s cause of action is not complicated, and we are aware of no circumstances which would preclude this pro se litigant from presenting his claim to the district court and, if need be, to this court after the entry of final judgment.” Id. at 1391.