State ex rel. Counsel for Dis. v. Castrejon , 311 Neb. 560 ( 2022 )


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    05/27/2022 01:06 AM CDT
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
    Cite as 
    311 Neb. 560
    State of Nebraska ex rel. Counsel for Discipline
    of the Nebraska Supreme Court, relator,
    v. Dazmi H. Castrejon, respondent.
    ___ N.W.2d ___
    Filed May 13, 2022.     No. S-20-825.
    Judgment of suspension.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    INTRODUCTION
    On November 23, 2020, formal charges containing two
    counts were filed by the office of the Counsel for Discipline
    of the Nebraska Supreme Court, the relator, against Dazmi H.
    Castrejon, the respondent. The respondent filed an answer to
    the formal charges on January 6, 2021. This court appointed
    a referee who conducted a hearing. At the hearing, the parties
    offered a joint statement of facts and agreed on the record that
    the violations alleged in the formal charges were not disputed
    and that the only contested issue was appropriate discipline.
    The referee filed a report on January 31, 2022. With respect
    to the allegations contained in the formal charges, the referee
    concluded that the respondent’s conduct breached the follow-
    ing provisions of the Nebraska Rules of Professional Conduct:
    Neb. Ct. R. of Prof. Cond. §§ 3-501.5(a) (fees and account-
    ing), 3-501.15 (safekeeping funds), 3-508.1(b) (unresponsive-
    ness in disciplinary matters), and 3-508.4(a) to (c) (rev. 2016)
    (misconduct). The referee further found that the respondent
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    had violated her oath of office as an attorney licensed to
    practice law in the State of Nebraska. See 
    Neb. Rev. Stat. § 7-104
     (Reissue 2012). With respect to the discipline to be
    imposed, the referee recommended suspension of the respond­
    ent’s license to practice law for a period of 2 years, followed
    by a period of probation or supervision. The relator moved
    for judgment on the pleadings under Neb. Ct. R. § 3-310(L)
    (rev. 2019) of the disciplinary rules. We grant the motion
    for judgment on the pleadings and impose discipline as indi-
    cated below.
    FACTS
    Background.
    The respondent was admitted to the practice of law in
    the State of Nebraska on January 24, 2011. The respond­
    ent worked for another attorney for approximately 2 years
    after her admission to practice, and thereafter, she maintained
    her own law practice as a solo practitioner under the name
    “Castrejon Law Office.” Beginning in 2018, the respondent
    practiced with another attorney, Erika Buenrostro, as a firm
    entitled “Castrejon & Buenrostro, LLC.” At all times relevant
    to these proceedings, she had engaged in the practice of law in
    Omaha, Nebraska.
    Grounds for Attorney Discipline.
    The violations arise from the respondent’s improprieties in
    managing her Interest on Lawyers Trust Account (IOLTA), her
    failure to provide an adequate accounting for fees to a former
    client, and her delays in responding to inquiries from the rela-
    tor relating to these matters.
    Procedural History.
    Between January 2017 and September 2019, the relator
    received four separate overdraft notifications regarding the
    respondent’s IOLTA. With each overdraft, the relator asked
    the respondent for an explanation, and in September 2019,
    the relator subpoenaed the respondent’s bank record for her
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    Castrejon Law Office IOLTA. After the respondent failed to
    adequately respond to the relator’s requests for explanations
    regarding the transfers of money from her business and per-
    sonal checking accounts into her Castrejon Law Office IOLTA,
    the relator upgraded the matter to a formal grievance. The
    respondent submitted a written response to the formal griev-
    ance as follows:
    •  I will clarify that the IOLTA account was only intended
    to hold client money that is used to pay immigration fil-
    ing fees until they are needed.
    •  Our office charges flat fees, and per our understand-
    ing of the ethics and rules of conduct, flat fees can be
    deposited into the regular business operating account
    upon receipt.
    •  I began falling behind on filing my personal federal
    tax returns with the IRS and as a result of this, started
    receiving letters and notices from them, including
    notices of possible levies.
    •  I did not know how to handle the situation appropri-
    ately and instead of seeking help or taking appropriate
    measures to resolve the situation, I instead panicked and
    withdrew into myself by trying to avoid the situation.
    •  However, I still wanted to ensure that I would be able
    to have some cash flow for the business and for pay-
    ing staff payroll in the event that levies would be
    implemented.
    •  So, I would make the regular deposits into my business
    checking account, but not knowing when those accounts
    would be levied upon, I started transferring money from
    my business checking account into my IOLTA account
    as “safekeeping” knowing that if it was there it would
    not be subject to any levies.
    •  Thus, while I continued to use the IOLTA account as
    it was intended for, making appropriate deposits and
    withdrawals for client filing fees, I did start also using
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    it to keep regular business income in it and then trans-
    ferring it back as needed.
    •  I knew that my actions were wrong and inappropriate.
    •  When I jointly opened Castrejon & Buensotro, LLC in
    2008, it was with the intention of phasing out Castrejon
    Law Office.
    •  My partner Erika Buenrostro manages all accounts
    for Castrejon & Buenrostro LLC[,] and I manage the
    Castrejon Law Office accounts. We do not have joint
    access to these accounts.
    •  The Castrejon Law Office IOLTA has now been phased
    out in its entirety, meaning, there is no more client
    money that needs to be drawn from it, and no more
    money will be deposited into it.
    •  All client filing fees from this point forward are being
    processed through the Castrejon & Buenrostro IOLTA
    account which I do not have access to.
    On March 18, 2020, we temporarily suspended the respond­
    ent’s license to practice law. The respondent’s IOLTA was also
    closed in March 2020.
    On April 1, 2020, the relator received a written griev-
    ance from a former client of the respondent, alleging that the
    respondent had charged $3,500 for assistance with an “I-130”
    immigration-related application, that the former client had
    requested an accounting of services and a refund of any unused
    funds, and that the client received a refund of $636 without
    an accounting of work done. The respondent failed to respond
    to the former client, to the grievance letter, and to a formal
    complaint to the respondent’s last known address. The respond­
    ent had not reported to the relator or “Attorney Services”
    of a change in her mailing address or contact information.
    After several attempts to contact the respondent, the relator
    amended the formal complaint and sent the new complaint to
    the respond­ent’s updated address.
    Formal charges were filed on November 23, 2020, and
    on January 6, 2021, the respondent filed an answer. She
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    admitted that she used her IOLTA to shield money from the
    Internal Revenue Service’s levy attempts, placing client money
    at risk for seizure; that she deposited funds into the Castrejon
    Law Office IOLTA greater than necessary to pay bank service
    charges on that account; that she deposited funds that were not
    connected with the representation of a client; and that she com-
    mingled her funds with client funds. With respect to the former
    client, she admitted that she failed to provide a full accounting
    of services she had provided. She admitted that she failed to
    cooperate with the formal investigation and did not provide
    any of the requested information to the relator.
    Referee’s Report.
    The referee held a hearing at which the respondent testi-
    fied and evidence was adduced. The parties stipulated to a
    joint statement of facts, in which the respondent admitted the
    formal charges and allegations of her actions and misconduct
    as proved. The only contested issue at the hearing was the
    question of appropriate discipline. In the January 31, 2022,
    report, the referee found that by clear and convincing evidence,
    through the respondent’s conduct, the respondent had breached
    provisions of the Nebraska Rules of Professional Conduct
    as follows: §§ 3-501.5(a) (fees and accounting), 3-501.15
    (safekeeping funds), 3-508.1(b) (unresponsiveness in discipli­
    nary matters), and 3-508.4(a) to (c) (misconduct). The referee
    further found that with regard to each of the counts enumer-
    ated above, the respondent had violated her oath of office as
    an attorney licensed to practice law in the State of Nebraska.
    See § 7-104.
    The record upon which the referee found violations was
    based on extensive exhibits and testimony from the respond­
    ent and her therapist. Morgan Keen Hecht, a licensed indepen-
    dent mental health practitioner and licensed certified social
    worker, offered expert testimony concerning domestic abuse,
    domestic violence, and coercive control, and she described
    her treatment of the respondent from December 2020 to the
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    311 Neb. 560
    time of the hearing. Hecht and the respondent had met on
    average twice per month. Hecht testified to the “Power and
    Control Wheel of Violence,” which addresses both physical
    and sexual violence and is divided into eight criteria and is
    applicable regardless of the gender of the person exercising
    power and control. Hecht testified that all of the following
    indicia were present with the respondent’s relationship with
    her ­ex-husband: (1) using intimidation; (2) using emotional
    abuse; (3) using isolation; (4) minimizing, denying, or blam-
    ing; (5) using children; (6) using male privilege; (7) using
    economic abuse; and (8) using coercion and threats. Hecht
    related a series of traumas the respondent had experienced
    over the course of her life starting in her childhood, which
    traumas included sexual assault and her marriage to her
    abusive husband at age 16. The respondent gave birth to her
    older daughter when the respondent was 17 years old. The
    respondent’s ex-husband became increasingly abusive, and the
    escalating demands began to overwhelm the respondent “to
    the point of being actually immobilized at some point and not
    able to use what we know are the intellectual and emotional
    capacity that she actually has.” This was exacerbated when
    the ex-husband became physically violent toward the couple’s
    older daughter, and the respondent was alerted that he might
    be sexually inappropriate toward the older daughter.
    Hecht testified that the respondent had described the sit­
    uation within the family as escalating to crisis proportions by
    2015. The husband’s business failed, and the family lost about
    $25,000. The respondent was unable to keep up economically,
    she was not handling her professional financial responsibili-
    ties, and the Internal Revenue Service had become involved.
    She did not share this with her husband, because she feared
    “abuse or worse.” Because of the abuse and isolation, the
    respondent had no family or close confidant in which she
    could confide.
    In 2019, the respondent was teaching the older daughter
    how to drive an automobile; her ex-husband found out and
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    flew into a rage. The ex-husband attacked and threatened to
    kill the daughter, the respondent, and himself. The younger
    daughter, in fear, called the police, but the police took no
    further action after defusing the matter on scene. A month
    later, the husband had “another violent temper tantrum,”
    and the respond­ent fled from the house with the younger
    daughter, went to a park, and told her husband she was call-
    ing the police. When the respondent and younger daughter
    returned home, the husband was gone, and he never returned.
    The respondent had described her husband’s abandonment as
    “number one crisis and loss in her life.” Hecht testified that
    as of this event, the respondent was devastated and became
    nonfunctional for a period of months. She also lost her law
    license, and this was followed by extreme financial problems
    and economic privation.
    Hecht diagnosed the respondent with post-traumatic stress
    disorder and “major depressive episode with severe anxious
    distress.” Based on Hecht’s testimony, the referee found that
    a person so afflicted would be incapable of functioning as a
    lawyer. Hecht opined that the respondent should continue in
    therapy for about 1 year beyond the time of the hearing. She
    testified that based on her interactions with the respondent, the
    respondent was clearly aware that the conduct which resulted
    in the formal charges was clearly wrong and a violation of the
    lawyer’s ethical code. She testified that she observed that the
    respondent is a highly intelligent and ethical human being with
    the “capacity to live out high ethics.”
    The referee found that the testimony of the respondent and
    Hecht was truthful and accurate. The referee further found that
    the extreme mental and emotional distress of the respondent,
    as well as the disability resulting from it, existed throughout
    the entire period of her conduct that was the basis for the
    formal charges. After reviewing the factors for discipline,
    the referee emphasized the “extraordinary circumstances in
    this case” and found that a suspension with the possibility
    of a return to practice if and when the Supreme Court deems
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    appropriate was in the public interest. The referee found that
    because the respondent was a victim of domestic violence, her
    trauma and mental health were substantial mitigating factors,
    and he noted that the respondent had voluntarily and in good
    faith sought professional mental health treatment. The referee
    noted with respect to her rehabilitative potential that
    the Respondent could endure a lifetime of physical and
    sexual violence beginning at the age of five (5) and
    continuing for over more than two decades, while at the
    same time completing her high school, college[,] and law
    school educations, maintaining a household and raising
    two children, is a remarkable and unique testament to her
    extraordinary qualities as a human being.
    The referee recommended suspension of the respondent’s
    license to practice law for a period of 2 years, with credit
    for the time since she surrendered her license to practice
    law, followed by a period of probation or supervision. The
    referee recommended that the respondent be ordered to com-
    plete her current treatment with Hecht and that she remain in
    therapy with a licensed professional through the balance of
    her supervision.
    STANDARD OF REVIEW
    Because attorney discipline cases are original proceedings
    before this court, we review a referee’s recommendations de
    novo on the record, reaching a conclusion independent of the
    referee’s findings. State ex rel. Counsel for Dis. v. Trembly, 
    300 Neb. 195
    , 
    912 N.W.2d 764
     (2018).
    ANALYSIS
    A proceeding to discipline an attorney is a trial de novo
    on the record. State ex. rel. Counsel for Dis. v. Wolfe, 
    301 Neb. 117
    , 
    918 N.W.2d 244
     (2018). To sustain a charge in a
    disciplinary proceeding against an attorney, a charge must be
    established by clear and convincing evidence. 
    Id.
     Violation of
    a disciplinary rule concerning the practice of law is a ground
    for discipline. 
    Id.
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    Based on the record and the undisputed findings of the ref-
    eree, we find that the above-referenced facts have been estab-
    lished by clear and convincing evidence. Based on the forego-
    ing evidence, we conclude that by virtue of the respondent’s
    conduct, the respondent has violated §§ 3-501.5(a), 3-501.15,
    3-508.1(b), and 3-508.4(a) to (c). We specifically conclude that
    the respondent has violated her oath of office as an attorney,
    see § 7-104. Accordingly, we grant the joint motion for judg-
    ment on the pleadings.
    We have stated that the basic issues in a disciplinary pro-
    ceeding against a lawyer are whether discipline should be
    imposed and, if so, the type of discipline appropriate under
    the circumstances. State ex. rel. Counsel for Dis. v. Wolfe,
    
    supra.
     Neb. Ct. R. § 3-304 of the disciplinary rules provides
    that the following may be considered as discipline for attor-
    ney misconduct:
    (A) Misconduct shall be grounds for:
    (1) Disbarment by the Court; or
    (2) Suspension by the Court; or
    (3) Probation by the Court in lieu of or subsequent to
    suspension, on such terms as the Court may designate; or
    (4) Censure and reprimand by the Court; or
    (5) Temporary suspension by the Court; or
    (6) Private reprimand by the Committee on Inquiry or
    Disciplinary Review Board.
    (B) The Court may, in its discretion, impose one or
    more of the disciplinary sanctions set forth above.
    See, also, § 3-310(N).
    With respect to the imposition of attorney discipline in an
    individual case, we evaluate each attorney discipline case in
    light of its particular facts and circumstances. State ex rel.
    Counsel for Dis. v. Wolfe, 
    supra.
     For purposes of determin-
    ing the proper discipline of an attorney, this court considers
    the attorney’s acts both underlying the events of the case and
    throughout the proceeding, as well as any aggravating or miti-
    gating factors. 
    Id.
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    To determine whether and to what extent discipline should
    be imposed in an attorney discipline proceeding, this court
    considers the following factors: (1) the nature of the offense,
    (2) the need for deterring others, (3) the maintenance of
    the reputation of the bar as a whole, (4) the protection of the
    public, (5) the attitude of the offender generally, and (6) the
    offender’s present or future fitness to continue in the practice
    of law. 
    Id.
    The evidence in the present case establishes that there were
    several types of misconduct, including that the respondent
    deposited her own funds into her IOLTA to avoid levy by the
    Internal Revenue Service, failed to respond to the relator’s
    investigations and requests for information, and failed to pro-
    vide an accounting to a former client.
    Mishandling of trust accounts is one of the most serious vio-
    lations of professional responsibility, and it must be deterred.
    Absent mitigating circumstances, the appropriate sanction is
    disbarment. State ex rel. Counsel for Dis. v. Council, 
    289 Neb. 33
    , 
    853 N.W.2d 844
     (2014) (noting that we have disbarred
    numerous attorneys for the misappropriation of client funds).
    “Mitigating factors may ‘overcome the presumption of disbar-
    ment in misappropriation and commingling cases’ where they
    are ‘extraordinary’ and ‘substantially outweigh’ any aggravat-
    ing circumstances.” Id. at 45, 853 N.W.2d at 853. When an
    attorney asserts domestic violence as a mitigating factor, the
    relator has an obligation to investigate and present evidence, if
    any, regarding the claim. The burden of proof of a mitigating
    factor is on the attorney.
    With respect to the protection of the public, the referee noted
    that the respondent has demonstrated medical improvement,
    indicating a repeat of misconduct is extremely unlikely. We
    note Hecht’s extensive testimony regarding the respondent’s
    success in therapy, her commitment to continuing therapy, and
    the potential for ethical future conduct should the respondent
    return to the practice of law.
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    STATE EX REL. COUNSEL FOR DIS. v. CASTREJON
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    The respondent has admitted wrongdoing and, since her
    answer to the formal charges, has cooperated with the relator
    despite her extreme mental and emotional distress. She sought
    help from professionals for both mental health support and
    accounting, and she unconditionally agreed to continue in men-
    tal health therapy.
    Although the respondent’s fitness to practice law was sig-
    nificantly impaired, the referee found that the respondent can
    regain her fitness and capability to practice law.
    With respect to mitigating factors, the parties agree that the
    respondent had no prior disciplinary complaints against her.
    Several letters of support attested to her work ethic, charac-
    ter, and advocacy on behalf of underrepresented and under-
    served populations.
    We have not previously addressed the role of domestic
    violence victimization, including intimate partner violence,
    coercive control, relationship abuse, and sexual violence in
    attorney ethical breaches. Specifically, we have not considered
    the role of being a victim of domestic violence serves as a
    mitigator in attorney discipline. Compare State ex. rel. Counsel
    for Dis. v. Thompson, 
    264 Neb. 831
    , 
    642 N.W.2d 593
     (2002)
    (establishing considerations for mitigation involving mental
    health issues). In the referee’s report, there was no mention of
    the nascent Nebraska Lawyers Assistance Program’s undertak-
    ing that assists and supports lawyers, judges, and law students
    who experience intimate partner violence. Acknowledging
    the “alarming trend within the legal profession” in reported
    domestic violence and sexual assaults, the Nebraska Lawyers
    Assistance Program now provides resources to legal profes-
    sionals experiencing intimate partner violence. See Chris
    Aupperle, Acknowledging Relationship Violence Within the
    Legal Profession, Neb. Lawyer, Jan.-Feb. 2022, at 47. Further,
    in a related area, we note the recent creation of Lancaster
    County’s Safe and Healthy Families Court, a postadjudication
    court program for families where one of the adjudication issues
    involved domestic violence.
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    As it relates to attorneys, the impact of intimate partner
    violence has been recognized nationwide, and courts have spe-
    cifically considered such circumstances to be a mitigating fac-
    tor in attorney discipline. The Supreme Court of Washington
    stated in In re Disciplinary Proceeding Against Dornay, 
    160 Wash. 2d 671
    , 687, 
    161 P.3d 333
    , 341 (2007), that intimate
    partner violence did not excuse the attorney’s actions, but was
    “a mitigating factor that merits substantial weight.” Oklahoma
    has addressed similar mitigation issues in several discipli­
    nary matters where the attorney’s misconduct correlated with
    the years of domestic violence and threats of violence by the
    attorney’s abuser or where intimate partner violence contrib-
    uted to the attorney’s extreme emotional distress. See, State
    ex. rel. Oklahoma Bar Association v. Levisay, 
    2020 OK 86
    ,
    
    474 P.3d 875
     (2020); State ex. rel. Oklahoma Bar Association
    v. Black, 
    2018 OK 85
    , 
    432 P.3d 227
     (2018); State ex. rel.
    Oklahoma Bar Association v. Hastings, 
    2017 OK 43
    , 
    395 P.3d 552
     (2017). In a Georgia disciplinary case, an attorney who
    admitted that she converted client funds for her own personal
    use to recover from the financial challenges brought on by her
    former abusive relationship was found to have done so due to
    extreme emotional distress stemming from domestic violence.
    Matter of Saunders, 
    304 Ga. 824
    , 
    822 S.E.2d 235
     (2018). In
    such cases, the impact of the intimate partner violence caused
    mental distress and emotional problems for the attorney and
    could be considered as a mitigating factor in determining the
    appropriate discipline.
    The record shows that Castrejon’s medical evidence estab-
    lished that she was affected by numerous mental and emotional
    traumas related to sexual assault and domestic partner violence.
    The testimonial evidence connected her mental and emotional
    state as a contributing cause of her misconduct. The testimony
    of Hecht and the respondent demonstrated that the treatment
    has been successful, that Castrejon is committed to continu-
    ing to work on her treatment, and that future misconduct is
    highly unlikely.
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    With respect to the discipline to be imposed, the referee
    recommended suspension of the respondent’s license to prac-
    tice law for a period of 2 years, with credit for her present
    temporary suspension. We have considered the record, the
    findings of which have been established by clear and convinc-
    ing evidence, and the applicable law. Upon due consideration,
    the court finds extraordinary mitigating factors and finds
    that a 30-month suspension, retroactive to March 18, 2020,
    is appropriate.
    The respondent shall comply with Neb. Ct. R. § 3-316 (rev.
    2014), and upon failure to do so, she shall be subject to pun-
    ishment for contempt of this court. The respondent is directed
    to pay costs and expenses in accordance with 
    Neb. Rev. Stat. §§ 7-114
     and 7-115 (Reissue 2012), § 3-310(P) and Neb. Ct.
    R. § 3-323(B) within 60 days after an order imposing costs and
    expenses, if any, is entered by this court.
    At the end of the 30-month suspension, the respondent may
    apply to be reinstated to the practice of law, provided that she
    has demonstrated her compliance with § 3-316 and further
    provided that the relator has not notified this court that the
    respond­ent has violated any disciplinary rule during her sus-
    pension. Upon reinstatement, the respondent shall complete
    2 years of monitored probation. During the period of proba-
    tion, the respondent will be monitored by an attorney licensed
    to practice law in the State of Nebraska and approved by the
    relator. The 2-year monitoring plan shall include, but not be
    limited to, the following:
    (1) The respondent shall continue her current regime of
    therapy with Hecht, and the respondent will remain in therapy
    with Hecht or another licensed professional for the balance of
    her supervision or until such time as her therapist or supervis-
    ing attorney (see below) jointly agree that ongoing therapy is
    no longer needed.
    (2) The respondent shall be subject to supervision by an
    appropriate licensed Nebraska attorney for a 2-year period.
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    (3) The respondent shall not engage in a solo law practice,
    but, rather, she shall work in a setting with other attorneys.
    (4) The respondent shall not have primary responsibility
    for managing any law firm operating or trust accounts. Any
    law firm operating or trust account transactions made by the
    respondent shall be reviewed and approved by her supervis-
    ing attorney.
    (5) The respondent shall complete additional coursework in
    accounting as directed by her supervising attorney, to ensure
    the respondent’s future compliance with IOLTA requirements.
    CONCLUSION
    We find that the respondent violated §§ 3-501.5(a), 3-501.15,
    3-508.1(b), and 3-508.4(a) to (c), as well as her oath of office
    as an attorney, see § 7-104. It is the judgment of this court
    that the respondent is suspended from the practice of law for
    a period of 30 months, commencing on the date of temporary
    suspension, March 18, 2020. Upon completion of the period of
    suspension and reinstatement to the bar, the respondent shall be
    placed on monitored probation for 2 years, subject to the terms
    set forth above.
    Judgment of suspension.