Forum LOS ANGELES DAILY JOURNAL z MONDAY, JUNE 9, 2008 z PAGE 6 The Zen of Mentoring

By Mariam Zadeh it was the right thing to do.” There men, in which both took sincere was no guiding principle, logical interest in the happiness, growth ne who refuses to seek analysis or data gathering that sup- and development of the other. the advice of others will ported our decision to move across When the time came for the older “Oeventually be led to a the country, where my husband man to retire, he declined all offers path of ruin. A mentor helps you to and I had no family, friends or jobs for the purchase of his over 30- perceive your own weaknesses and awaiting us. year thriving practice, and chose confront them with courage. The In less than a week after our ar- instead to gift his practice to my fa- bond between mentor and protégé rival in Los Angeles, I had accepted ther. When asked why, the retiring enables us to stay true to our cho- a position as in-house counsel with doctor would reply, “Knowing that sen path until the very end,” said an insurance company. Sifting the practice I spent my life building the Buddhist philosopher Daisaku through my predecessor’s mail, I is in Dr. Zadeh’s hands, and that Ikeda. found a brochure on Pepperdine he won’t disappoint my patients, is On Sept. 11, 2001, the lives of University’s L.L.M. program. My worth much more to me than the many in New York were forever fi rm belief that there are no coinci- money I would receive from selling changed, including mine. If I had dences in life, and that everything my practice to someone else.” been asked then what I would be happens for a reason, led me to look Eastern philosophers, particular- doing now, I would never have into the Masters of Law program ly Buddhist practitioners, believe imagined it would be this. that Pepperdine offers in alterna- that everything is determined by I was riding the Staten Island tive dispute resolution. While not whom a person chooses as a men- Ferry on my way to court like any evident at the time, I was en route tor in life, and the kind of disciple other morning, when I looked up to fi nding my mentor. chosen by the mentor. Buddhism and saw the second plane fl y over- In classic Greek mythology, teaches that nothing can exist head into the World Trade Center Odysseus asked his friend Men- entirely on its own, in complete just a few blocks from my home tor, a wise teacher, to watch over isolation; all things are mutually in Battery Park City. Before long, his precious son, Telemachus, as dependent upon and infl uence one with a thunderous roar, a portion Odysseus embarked on a lengthy another. of the city skyline was erased from voyage. As a surrogate parent, Manhattan’s landscape. Mentor gave support, love, guid- n the ideal interdependent men- I had no way of reaching my ance, protection and blessing to the toring relationship there exists family for nearly two days. When young child. Thus, we have come to Imutual fulfi llment, compassion, we were fi nally reunited, I learned know mentors as those who gently respect, open communication and that my husband had been hit in the guide and nurture the growth of loyalty, where the reward is not only head by debris and knocked uncon- others during various stages of in reaching one’s goals, but also in scious. Fortunately our doorman, their development. the very process of guiding and “following his instinct,” found and As a young physician with hum- growing together. revived him outside our apartment ble beginnings, my father began I have had the good fortune and building. his medical practice seeing patients privilege to have this relationship Although a practicing Buddhist one day per week. An opportunity and fl ow of wisdom with my men- prior to Sept. 11, I rarely took time presented itself when an older doc- tor, Jeffrey Krivis, who I met at for introspection. My focus instead tor with a thriving 30-year practice Pepperdine University. Like my was on rising in the partnership was overbooked and asked my fa- father’s mentor, Jeff saw the impor- ranks of the elite law fi rm of which ther to see a couple of his patients. tance of sharing his experience and I was a part. I was so intently fo- Although my father was young and knowledge with a member of the cused on achieving “success” that relatively inexperienced, the older next generation in the fi eld. I rely it took an event of this magnitude to man took notice of his kind bedside on Jeff, as my mentor, to tell me the awaken me to the realization that I manner, keen intellect and sincere good, the bad and the ugly, and to was looking in the wrong place. interest in each patient’s health genuinely want my success. As his impact him by association. When looking for such a relation- are ready for this journey, your part- In Buddhist philosophy, human and well-being. Soon he developed mentee, I understood and appreci- The mentoring relationship is not ship, rely on your heart, your deep, ner will appear. instinct is considered real knowl- a sense of comfort and trust that ated that Jeff was entrusting me one to enter into lightly. It comes intuitive sense of what seems right, edge, based on insight and the wis- his patients would be well cared for with his name and reputation, with responsibility and expecta- and remember the Taoist principle Mariam Zadeh is a full-time media- dom from our true nature. When by this young doctor. This was the which he had spent years of hard tions that both parties must meet if that the best relationships are like tor and partner with Jeffrey Krivis at asked about what brought me to beginning of a lifelong mentor-dis- work building, and that my actions, the relationship is to be a successful water: benefi ting all things and First Mediation Corporation in California, I usually answer, “I felt ciple relationship between the two whether positive or negative, would and rewarding one for all involved. competing with none. When you Encino. State Bar Should Propose a Prohibition of Redundant Rules

By Rafael Chodos a non-refundable fee, if interpreted after the time of the literally, would mean that every fee deposit, and then he State Bar has recently a lawyer collects, except for “true to refuse to return released a draft of Proposed retainer fees,” would have to be the money when it T New Rule 1.5(f), which reads refundable — even fees charged for turns out that the as follows: “A lawyer shall not make work done and completed. Under work never is actu- an agreement for, charge, or collect the proposed language, a lawyer ally completed. But a non-refundable fee, except that a could collect a retainer fee paid already under pres- lawyer may make an agreement, solely for the purpose of ensuring ent law, such money for, charge or collect a true retainer his availability for the matter, yet would be viewed as fee that is paid solely for the pur- then be run over by a truck and not trust funds held by pose of ensuring the availability of have to return the fee. the attorney for the the lawyer for the matter.” The proposed rule does not ad- client’s benefi t to be The Bar has not indicated why dress the issues that must really applied to the desig- the proposed language is needed, be on the draftsmen’s minds, and nated purpose; and but whatever the perceived need those issues are already addressed like all trust funds, might be, it is very clear that the lan- elsewhere. the money would have guage fails conspicuously to meet it, The draftsmen’s idea, surely, is to be returned to the cli- for the following reasons: that it should be improper to re- ent if the purpose for which The proposed rule cannot pos- quire a client to deposit money with it was entrusted evaporated. sibly mean what it actually says. an attorney that is intended to pay The real issue that the proposed The prohibition against collecting for identifi ed work to be completed rule is trying to address is not the nature of the fee agreement, but the obligation of the attorney to refund any unearned portion of the fee. But this obligation is already addressed your in Rule 3-700(d), which states mat- clearly that upon termination of ter un- Charles T. Munger Gerald L. Salzman the attorney-client relationship, the Chairman of the Board Publisher / Editor-in-Chief less you J. P. Guerin Robert E. Work attorney must return to the client give me $X Vice Chairman of the Board Publisher (1950-1986) all unearned fees. See also Clark v. in advance as Millsap, 197 Cal. 765 (1926), for an a nonrefundable Martin Berg early case applying this idea. fee,” then $X is a Editor The “true retainer” issue arises retainer — period. David Houston Sara Libby also when a client, eager to remove San Francisco Editor Legal Editor Even if the lawyer his assets from the reach of his agrees to perform some Jim Adamek, Susan McRae, Zack Van Eyck creditors, transfers them to his Associate Editors, Los Angeles specifi c work as part of the trusted attorney characterizing initial transaction, that does Alexia Garamfalvi Hannah Naughton them as “a true retainer.” It might Associate Editor, San Francisco Projects Manager, San Francisco not render the fi xed payment be desirable to pass a rule to prevent anything other than a true retainer. there is an allocation of risks and Aris Davoudian, Heidi Fikstad, Designers such schemes. But already, under After all, making oneself available benefi ts imbedded in the arrange- Los Angeles Staff Writers existing law, the court may disbe- to work on a matter necessarily ment between the lawyer and his Pat Alston, Noah Barron, Rebecca U. Cho, Cortney Fielding, Gabe Friedman, lieve the collusive characterization involves a lot of work: reading the client, and this allocation is part of Evan George, Sandra Hernandez, Robert Iafolla, Greg Katz, Peter B. Matuszak, and require the attorney to treat existing papers, studying the ap- Maya Meinert, Anat Rubin, Nicolas Taborek the deal the courts must enforce. the assets as trust funds. See e.g. plicable law, taking long walks in The proposed language emanates San Francisco Staff Writers Brothers v. Kern, 154 Cal.App.4th the forest to decide what the overall from the rigid assumption that law- Rebecca Beyer, Laura Ernde, Adam Gorlick, Amelia Hansen, Devan McClaine, Jill Redhage, John Roemer, Fiona Smith, Jonathan Vanian, Amy Yarbrough 126 (2007), a recent case in which strategy should be, and clearing yers’ charges must be capable of this very thing happened. What one’s calendar in order to have time being broken down into identifi ed Robert Levins, S. Todd Rogers, Photographers provided the fee agreement is in is really at stake in these sorts of and focus available for the matter units, such as hours or specifi c Jacqueline Waldman, Editorial Assistant compliance with Rule 4-200. cases is the honesty of the charac- — all these things have to be done tasks. But lawyers are not required Too bad that there is no general Bureau Staff Writers terization rather than the propriety as part of the initial work. Depend- to bill by hours, nor by specifi c Craig Anderson, San Jose, Jason W. Armstrong Riverside, prohibition in our law against pass- of the alleged fee arrangement; and ing on the circumstances, the tasks, nor is hourly or task billing Pat Broderick San Diego, Don J. DeBenedictis, Santa Ana, ing a superfl uous or redundant rule Lawrence Hurley, Brent Kendall, Washington D.C. the proposed rule does not address nonrefundability of the fee should always the best approach for the or statute. If there were such a Rulings Service that issue at all. not be affected even if some of this client. Nor is the contingent fee the Lesley Chan, Rulings Editor work ends up not having to be done. only alternative: Sometimes mixed meta-rule, our statute books would Anjuli Arora Dow, Seena Nikravan, Serena Siew, Legal Writers be a fraction of their present size Mia Kim, Verdicts and Settlements Editor urking behind the proposed If for example, the other side sees fee arrangements, with components language is an unspoken as- the error of its ways shortly after drawn from hourly billing, task bill- and all our lives would be much Advertising easier — and this proposed Rule Audrey L. Miller, Corporate Display Advertising Director L sumption that is both rigid reading the new lawyer’s fi rst fi l- ing, and contingencies, are best for 1.5(f) would not have made it as far Sheila Sadaghiani, Monica Smith Los Angeles Account Managers and improvident. The characteriza- ings and settles quickly; or if the both parties. When the parties dis- Joel Hale, Michelle Kenyon, Vanessa Ouellette, San Francisco Account Managers tion of a given fi xed payment as a client changes his mind after the at- cuss all the myriad elements of risk as it apparently has. Jesse Rios, Display Advertising Coordinator “retainer” must be left to the agree- torney has gone through his “make and work, and make an agreement, Alexandra Brown, San Francisco Administrative Coordinator ment of the attorney and the client. myself available” routine; or if a new that becomes their deal and it must Art Department Rafael Chodos is a sole practitioner Kathy Cullen Art Director To the extent that any payment is case comes down that makes the le- be respected and enforced. The Bar in Los Angeles who specializes in Mel M. Reyes Graphic Artist said to be non-refundable it is, by gal landscape less hostile — none should not be poking its bureau- business litigation and mediation, defi nition, part of the true retainer. The Daily Journal is a member of the Newspaper Association of America, of these events should require the cratic nose into these negotiations and he is the author of “The Law California Newspaper Publishers Association, National Newspaper Association and Associated Press For if the lawyer says to the client, attorney to change the deal and so long as they are open, free from of Fiduciary Duties.” He can be “I will not be available to work on refund the fee. As in all contracts, fraud, agreed to by both sides, and reached at [email protected].