TERMAINE HICKS v. CITY OF PHILADELPHIA, et al.
No. 22-977
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
August 29, 2025
John F. Murphy, J.
AND NOW, this ________ day of _______________, 2025, upon consideration of Defendant City of Philadelphia‘s Motion for Sanctions, and any response thereto, it is HEREBY ORDERED that the Motion is GRANTED. As a result of the sustained and ongoing conduct that violates expectations of attorney comportment in this forum, in particular making expressly false accusations of attorney misconduct by the attorneys for the City of Philadelphia, the pro hac vice admission of Attorney Nick Brustin is hereby revoked. This attorney is further admonished for his vexatious and unprofessional behavior, and is on notice that such will not be tolerated in this Court.
BY THE COURT:
___________________________
John F. Murphy, J.
AND NOW, this ________ day of _______________, 2025, upon consideration of Defendant City of Philadelphia‘s Motion for Sanctions, and any response thereto, it is HEREBY ORDERED that the Motion is GRANTED in part, and DENIED in part. Defendants’ Motion is granted to the extent that it is ORDERED that Attorney Nick Brustin is hereby admonished by the Court for making expressly false accusations of attorney misconduct by the attorneys for the City of Philadelphia, and further ORDERED to cease engaging in any such obstreperous and offensive litigation conduct. Because Defendant‘s Motion for Sanctions is filed after the case has been submitted to the jury, it is DENIED to the extent that it seeks revocation of the pro hac vice admission of Mr. Brustin.
BY THE COURT:
___________________________
John F. Murphy, J.
Defendant City of Philadelphia hereby files this Motion for Sanctions against Plaintiff‘s counsel. In support of this motion, Defendant incorporates the attached Memorandum of Law. Defendant respectfully requests that this Court revoke the pro hac vice status of Attorney Nick Brustin as a consequence for his patently false accusations that defense counsel made misrepresentations to the Court and suborned perjury, and for Mr. Brustin‘s suggestion that defense counsel are racist. At the very least, Defendant respectfully requests that this Court admonish counsel for his failure to conform to minimum professional standards during the litigation of the trial.
Respectfully submitted,
/s/ Danielle E. Walsh
Danielle E. Walsh
Chief Deputy City Solicitor
PA Attorney ID No. 312438
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
(215) 686-0464 (phone)
Danielle.walsh@phila.gov
I. Introduction
Defense counsel has been subject to innumerable examples of appalling treatment by Plaintiff‘s counsel during the years of contentious litigation giving rise to the trial that just concluded before the Court. Though having once raised it to the Court by way of letter, defense counsel have refrained from seeking formal court intervention to address this behavior. But enough is enough.
On August 13, 2025, attorneys Nick Brustin and Amelia Green accused City attorney Daniel Cerone, in open court and on the record, of making affirmative misrepresentations to the Court. A week later, on August 20, 2025, Mr. Brustin further accused Mr. Cerone of having coached a witness to provide false testimony to the Court and the jury. These baseless attacks on the integrity, ethics, and candor of a dedicated public servant are rendered more grotesque by the fact that Mr. Brustin (1) attributed to Mr. Cerone statements made by his own colleague, Ms. Freudenberger, who spoke the words Mr. Brustin takes issue with in the first accusation, and (2) blatantly lied in the second. Compounding the appalling conduct of these attorneys, Mr. Brustin also insinuated that Mr. Cerone‘s defense of his client‘s cross-examination reveals racial bias by
This offensive behavior must stop. It can stop by revocation of Mr. Brustin‘s pro hac vice admission, a sanction with which he is familiar, or it can at least be curtailed by a formal admonition of counsel. Either way, and based upon the authorities that follow, the City respectfully requests that this Court stop, or at least limit, counsel‘s abusive behavior for the remainder of this case and expressly put them on notice that it will not be tolerated in the Eastern District of Pennsylvania.1
II. Argument
A. The Court Should Revoke the Pro Hac Vice Admission of Nick Brustin as a Sanction for his Litigation Conduct
Rather than litigate the facts of the case, Nick Brustin has engaged in a ceaseless assault on the character, ethics, and comportment of the defense lawyers in this case. His decisions to, on the record, suggest that defense lawyers are racist, that they are making affirmative misrepresentations to the Court, that they coached clients to lie to the jury, and that they are “pieces of shit” violate every precept of decorum that the Eastern District of Pennsylvania professes to honor. More egregious, however, is the fact that he makes these accusations and has to date experienced no consequence for the fact that his accusations are patently undermined by the record. Mr. Brustin should be on notice not to recklessly engage in such behavior because he has been sanctioned before. And he should be so sanctioned now.
Unlike the matter in Young, in which the filing giving rise to sanctions was, upon review, not expressly false, the factual predicate giving rise to this request for sanctions is explicitly supported by the transcript of proceedings in this ongoing trial. On August 13, 2025, at a midday break, Mr. Brustin addressed the court:
So, your honor, the entire foundation for getting in the report from the medic was that it was a report from Mr. Campbell. It turns out it was not. He had nothing to do with it. And counsel represented to you that that was the foundation for the report.
And I probably – we probably should have looked closer, but we didn‘t think it would be misrepresented to the Court. So there was no foundation for that report to come in. And had the Court been properly informed, it wouldn‘t have gotten in.
Aug. 13, 2025 Tr. 236:22 – 237:7, attached hereto as Ex. A. His supervisee Ms. Green then weighed in:
Our understanding was Holstein was deceased and that Detective Campbell was going to lay the foundation for why this was said. That‘s what was stated. And then it was revealed through my questioning he didn‘t even know anything about this report, so the whole argument –
Ex. A, Aug. 13, 2025 Tr. 237:2 – 238:3. Mr. Brustin next took up the character assault:
But the problem is the representation to your honor. That‘s the problem with this.
Ex. A, Aug. 13, 2025 Tr. 238:17-19.
In sum, both of these attorneys, too distracted with their ceaseless hostility to properly interpret the evidence themselves, suggested the City attorney had engaged in unethical conduct, violating his duty of candor to the tribunal and making material misrepresentations to the Court about the evidentiary basis for the admission of a specific document. But the transcript reveals that both of these attorneys made material misrepresentations of fact, misrepresentations that they then compounded by suggesting improper behavior by a government lawyer. Mr. Brustin had the gall to suggest about the government attorney‘s behavior, “it‘s very troubling[,]” Ex. A, Aug. 13, 2025, at 238:24, when the truly appalling behavior was by him and his supervisee.
That day‘s transcript clearly shows that the only person who suggested Detective Campbell took the statement at issue was Emma Freudenberger, the colleague of Mr. Brustin and Ms. Green. To reiterate only Plaintiff‘s counsel made representations about the author of the statement. Mr. Cerone did not. So Ms. Freudenberger‘s colleagues use their own misunderstanding of the document, and her own misstatement of the document‘s provenance, to attack the character and ethics of Mr. Cerone in open court.
In case we weren‘t being clear. The implication is that everybody knew it was in the pocket because someone put it there and he‘s getting up there suggesting that‘s where it was. And that happened during a meeting with the attorney. So if it wasn‘t clear what we‘re alleging, that‘s what we‘re alleging.
Aug. 20, 2025 Tr., 208: 20-25, attached hereto as Ex. C. The Court did not address this accusation that a City attorney coached a witness to lie, but instead simply stated that the Court would listen carefully to whether a question invited a violation of attorney-client privilege. Id. at 209:1-4. There is no factual basis for Mr. Brustin‘s accusations that any such impropriety occurred, and there is no basis for his ongoing assault on the ethics and character of the defense lawyers.
The following day, Mr. Brustin commented to his colleague, regarding another City attorney, Andrew Pomager, as he was approaching the podium to read in testimony, that “this guy‘s a piece of shit.” Aug. 21, 2025 Tr., 70:2-72:15, attached hereto as Ex. D. This statement, even if intended to be for the ears of Mr. Brustin‘s colleague, was loud enough for another defense attorney to hear and was said while the jury was empaneled. See id. While perhaps not as egregious as the unfounded, harassing attacks on defense counsel‘s ethics, this unchecked behavior nevertheless represents a continuation of the unprofessional and disrespectful conduct that is the hallmark of Mr. Brustin‘s behavior in this case.
B. Counsels’ Actions Are a Clear Violation of the Pennsylvania Rules of Professional Conduct, Adopted by the Eastern District of Pennsylvania, and the American College of Trial Lawyers’ Code of Trial Conduct.
Counsels’ above-quoted statements, the basis for one of which was their own colleague‘s statement to the Court and not anything stated by the City attorney and the other of which has no basis in fact, also violate several codes of conduct, warranting imposition of sanctions. The record makes clear that Plaintiffs attorneys misrepresented the record or just invented falsehoods while seeking to suggest unethical conduct by defense counsel.
The Eastern District of Pennsylvania has adopted Pennsylvania‘s Rules of Professional Conduct.
Pennsylvania Rule of Professional Conduct Rule 8.4, titled “misconduct“, indicated in subsection (a) that it is professional misconduct for a lawyer to “violate or attempt to violate the
In turn, the American College of Trial Lawyers’ Code of Pretrial Conduct and Code of Trial Conduct state that the legal profession is being eroded by a wave of unforgiving conduct, including: “meanness, sharp practice, and unnecessarily aggressive behavior.” Forward, Code of Pretrial and Trial Conduct, (Am. Coll. of Trial Lawyers 2009). These rules also provide that, at a minimum, counsel should treat opposing counsel with basic respect. In regard to comportment before the Court “(j) A lawyer must never knowingly misquote or mischaracterize the contents of documentary evidence, the testimony of a witness, the statements or argument of opposing counsel, or the language of a judicial decision.” Id. at 5. The Eastern District of Pennsylvania has relied on the guidance of the American College of Trial Lawyers’ Code of Pretrial Conduct and Code of Trial Conduct. Helfer v. Marriott Int‘l, Inc., No. 06-726, 2007 WL 433477, at *7 (E.D. Pa. Feb. 8, 2007) (Padova, J.) (“We refer counsel to the Code of Pretrial Conduct published by the American College of Trial Lawyers. Code of Pretrial Conduct, (Am. Coll. of Trial Lawyers 2002). The Code recognizes that a lawyer‘s role is to zealously advance the legitimate interests of his or her clients, while maintaining appropriate standards of civility and decorum. Id. ¶ 4(a).“); see also Eastern District of Pennsylvania, Gerald A. McHugh, District Court Judge, “Instructions” (linking to the 2009 version of the Code of Conduct).
Not only have they falsely accused Mr. Cerone of improper conduct, but also Mr. Brustin suggested that Mr. Cerone‘s lodging of proper objections was racist. Ex. A, Aug. 13, 2025 Tr. at 91:21-93:4. Eventually these continued baseless accusations of racism culminated in a lengthy on the record exchange on August 22. Aug. 22, 2025 Tr., 145:14-154:18, attached hereto as Ex. E. Mr. Pomager simply tried to memorialize an off-record exchange between him and Ms. Green and express his preference that any potentially problematic interactions with Plaintiff‘s counsel occur on the record (particularly in light of counsel‘s previous accusations of misconduct and racism). In response Ms. Freudenberger launched into yet another attack, despite not having witnessed the exchange, that Mr. Pomager was invoking racial stereotypes of an angry black woman and that the defenses being raised in the case were racist. And despite her claim that “none of us had any idea who Andrew Pomager was two days ago,” Ms. Freudenberger made the bold and baseless accusation to the Court that “I do believe my partner is treated differently. I don‘t think this would have been raised if I had approached defense counsel.” Ex. E, Aug. 22, 2025 Tr. at 147:1-2; 153:1-3. As the Court is aware, this is not the first time in this litigation that Plaintiff‘s counsel has engaged in this type of offensive character assassination. It must not be tolerated.
C. The Sanction of Formal Admonition is Within the Inherent Power of the Court to Enforce Minimum Professional Standards
“[U]ncivil, abrasive, abusive, hostile or obstructive conduct by lawyers impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently.” Huggins v. Coatesville Area School Dist., No. 07-4917, 2009 WL 2973044, at *1 (E.D. Pa. Sept. 16, 2009). In the context of counsel‘s conduct during discovery, the “decision to impose sanctions for the conduct of counsel” is “generally entrusted to the Court‘s sound discretion.” Id. at *2. When lawyers “trample on civility, or when their supposed devotion to their clients leads to stridency or worse, they undercut the belief in the law and in the legal profession.” Id. at *1. Indeed, “[t]reating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law.” Id. at *3.
The court in Huggins applied these precepts to find that counsel that engaged in heated arguments and name-calling during a deposition had in fact committed sanctionable conduct. While one attorney was found to have behaved more poorly than the other, the court found that both bore some blame for the conduct giving rise to the motion for sanctions. The court ordered one attorney to attend a CLE course on civility and both attorneys to lunch together. Id. at *3-4. The conduct of Plaintiffs’ counsel is far worse than what the court addressed in Huggins. Rather than attorneys behaving poorly in a deposition, counsel who is the subject of this motion falsely accused a government lawyer of misconduct and racism.
Huggins illustrates the inherent power of the court to enforce minimum professional standards. To the extent the Court is disinclined to revoke the pro hac vice status of the
III. Conclusion
For any or all of the above-explicated reasons, the Court should impose sanctions on Plaintiff‘s counsel. To the extent those sanctions are not revocation of Mr. Brustin‘s pro hac vice status, sanctions should at the very least include an admonition that such conduct will not be tolerated, and a warning that continuing to engage in abusive conduct may warrant imposition of further sanctions.
Respectfully submitted,
/s/ Danielle E. Walsh
Danielle E. Walsh
Chief Deputy City Solicitor
PA Attorney ID No. 312438
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
(215) 686-0464 (phone)
Danielle.walsh@phila.gov
I hereby certify that on the date below, Defendant, City of Philadelphia‘s, Motion for Sanctions and this Certificate of Service were filed via the Court‘s electronic filing system and are available for downloading.
Date: August 28, 2025
Respectfully submitted,
/s/ Danielle E. Walsh
Danielle E. Walsh
Chief Deputy City Solicitor