Dear all
As we also clarified at the meeting on Thursday, UCOL has signed an agreement with (originally Polson McMillan and now) McMillan & Co for legal representation, so although we did have Helen Davidson as our lawyer, we did sign with the firm she was with, rather than her individually. Hence the status quo is indeed that our current legal representation is with McMillan & Co.
Although a couple of lawyers have given their points of view that UCOL should move with Helen, please note that they really have no 'skin in our game' apart from representing several parties amongst us. On the other hand Stephen Edge has considerable 'skin in our game' without which we would have no loan and no co-housing development. He is also the one who is in dialogue with and advises the Kiwibank lawyers. His professional opinion should therefore, I think, be given very high consideration. Debating the ins and outs of 'the Dunedin legal scene' with the Kiwibank lawyer has already cost us more money than needed according to Stephen Edge. Personally I think its imperative that our legal representative (whomever we choose) will display the collegial skills necessary to work with other legal representatives, and to meet the professional expectations of our lender (Kiwibank) on UCOL's behalf.
As already pointed out and acknowledged by Rachel Gibb, although Helen has had experience in one other 'non-developer led housing development' - the one referred to had a process to unit titling (as I understand it) over many years and with no 'time pressures' as such, rather than the timeframe we are looking at.
I understand that for many people in this discussion that loyalty should be the paramount consideration in choosing our legal representation, and that for many others that professional service is the paramount consideration. These are both important, sincerely & deeply held values. But we have come to an impasse.
Can I suggest that we should indeed move forward onto the shareholder vote, as is the prescribed and documented co-housing process for such an impasse, and as we decided at Thursday's meeting. I don't see this as a failure, but simply as us following the well-thought out co-housing process that we have all committed ourselves to. No doubt, in the years that stretch before us, there will be other times when consensus doesn't achieve all the lofty hopes we have for it, and we have to finally decide something by a democratic vote. My hope is that we can now practice this now without rancour or recrimination. If there is support to move our legal representation to Helen, then I hope we will all do that graciously. If there is not support to move to Helen, then we will remain with McMillan and Co, and again, I hope, we will all do that graciously.
Kind regards,
Susan
On Tue, Jul 2, 2019 at 10:44 PM Catherine Spencer via Ucol-shareholders < ucol-shareholders@list.king.net.nz> wrote:
Dear all,
Further to our discussions last Thursday, I am emailing to clarify my red card, and particularly for those, who have not been present at meetings. I also include copy of what I said at the beginning of the meeting during the reflection time.
I find it distressing that we have chosen to go to a vote and am also uncomfortable with the premise that the status quo is to change lawyers and leave our files at McMillan & Co. This was brought up towards the end of the meeting, when all were tired. I missed the opportunity to voice that for me the status quo is remaining with our current lawyer, Helen Davidson and that moving to Simon Milne at McMillan & Co is the change. We chose her expertise and experience at the beginning and not the firm. She holds the intellectual property of our project, which is not a standard development, has the institutional knowledge and history of it and provides continuity. We would not be having this discussion had she remained at McMillan & Co, which incidentally is a firm less than a year old.
Briefly here are the main reasons, weighting and values I give to why we should continue to instruct Helen Davidson as our lawyer.
- Two highly respected Dunedin lawyers (Garth Lucas, Antony Hamel) have
advised us to do so. Another has also advised a group member the same thing. I value highly independent professional advice from those, who are in the profession and know the circumstances and context of the local legal profession, as well as the scope of work required.
- I respect Kiwibank advice, to go with a larger firm, but given Stephen
Edge is a banker and not a lawyer and does not know the legal scene in Dunedin I rank this consideration lower than the first. The above recommendation from Garth & Antony would not be given if they did not think Helen’s practice had the capacity and ability to do the job well. They also indicated that all may not be well at McMillan & Co, which fits with the information that further staff have left and there is now no continuity from staff, who have worked on Cohousing matters left. We also know that Helen has managed this unusual non-developer led unit title development before with the Northern Downs Housing project - much can be staged and the final settlement will be as dependent on shareholders & their lawyers as much as the company’s lawyer.
- Further cohousing issues will arise, (not just the job of unit titling
and settlement), which demands an intricate knowledge of all our documents and how they work together. [We are already in s situation where this is critical, with how we process the new unit holders and exit Geoff & Anne, and Rachel. Stephen Edge has provided feedback from KB lawyers (since our previous minute), which has an eye-watering price tag of $5 - 8,000 +GST for their part alone. The costs of our lawyer (NB. which Helen replied are contained within her overall quote), the new unit holders’ lawyers, and Geoff & Anne’s and Rachel’s lawyers would be on top of this, and although we warned of a possible further $10,000 for legal fees I don’t see that being contained to the level, nor do I think anything much more than this can be expected from the new comers. With Helen as our lawyer it would be easy to pick up the phone and discuss other outside the box ways to achieve a safe and binding settlement between the parties, which did not involve unpicking all our current documents and involving the KB lawyers.] Helen is the person with that knowledge and skill set to think outside the square.
- I hold real concerns for costs spiralling upwards considerably with
McMillan & Co. Antony Hamel indicated the best way to contain costs is to have the right person doing the job and that in his opinion is Helen.
- Engaging legal representation is about a relationship along side the
required expertise. In terms of social ethics, why would we want to change from a lawyer, who has worked so well to get us to where we are, is supportive of our kaupapa, given us many hours pro bono, done the really hard and complex stuff and has been on the journey with us for 6 years? Why would we want to treat that person so badly? I think that reflects extremely badly on the Company and us as individuals. It would be another matter if Helen had underperformed or made gross errors, but she hasn’t and letting her go and not letting her finish the job she started, certainly does not reflect my personal values of how to treat people, nor how I would wish to be treated.
Here follows what I said to the meeting last Thursday, which I wanted to do face to face in the first instance.
I wish to touch on 3 things in this time for reflection and listening.
Firstly, we all know our deliberations in these matters have not been easy and I wish to acknowledge any contribution I may have made which may have added to any misunderstanding or unease and to try at this point to increase some understanding around what has happened for me in the process and why I come to hold my views.
Secondly since holding up a red card, which I did with great reluctance, as I believed not all the information we needed to make a strong decision was on the table, I have experienced personal attacks both in and out of meetings. I don’t want my learning to be that the cost of holding up a red card is too high on a personal level. *[I acknowledged here the thanks, which was voiced by a number of people at the meeting to those, who had shown red cards]* I do want to see robust discussion of ideas, and I am determined not to be cowered into not using a red card, should I see fit another time. I hope we can all learn from this experience some of the wider tools available to create consensus and a safe environment for discussion. Tonight is not the time to discuss the process.
Thirdly I wish to be clear that from the outset I have considered what both McMillan & Co and Helen Davidson could offer the project at this point. There are advantages and risks with both of them. At the beginning, I was certainly prepared to be persuaded either way. However as the arguments were put forward, I found myself passionately advocating for Helen, in part because, while you entrusted me to co-ordinate the legal and financial arrangement, particularly at the end of last year, when I was in almost daily contact with Helen & other lawyers, I found myself (rightly or wrongly) excluded from sharing that information and experience other than in the larger group. It felt like that work and experience were not valued, but more importantly there were a number of occasions, where risks or arguments against Helen were not based on full information. Had I been consulted they could have been easily cleared up and the discussions less divisive.
Of course there are going to be more known advantages and risks with Helen as she has been on the journey with us for the past 6 years. And no, she in not perfect, but we know where she stands, her values and huge support for the principles of cohousing and our project.
I am not sure you all know, how much gofering I did last year chasing up and explaining documents from shareholders & their lawyers, the Council etc., sometimes to the extent of walking documents across town for expediency of time and money. I hate to say that not all our lawyers, nor us as purchasers were up to speed last year. It was an extraordinarily complex task that Helen was asked to do and which she completed almost solo. There will, without a doubt, be the need for that kind of interaction from UCOL & our personal lawyers to UCOL’s legal representative towards settlement, which needs to be considered. So I just put that before you. *(See notes above about specialist cohousing knowledge, as opposed to unit titling and settlement issues)*
I hear that a number of you are concerned about Helen’s slip of judgement for which she was censured a number of years ago. She has served her time and it has not impacted on our project over the past 6 years. Her recent drink driving conviction was regrettable but that does not negate her legal expertise and knowledge. Likewise the endorsements given by Antony and Garth gives perspective and therefore gives me every confidence in the new partner practice. Everyone makes mistakes – including Kiwibank lawyers – they included a document amongst ours with the wrong firm, addresss, amounts, construction company and several others. But you move on…. Some people have advanced the idea that Helen did not get on with the KB lawyers – she was advocating for us and on one occasion had to explain that the way in which unit titling is done under the DCC is different from that of Auckland City Council. She established a good working relationship with them despite their working methodologies not being the same.
I also hear Stephen Edge preferring a lawyer from a larger firm. To me, that is the corporate culture he is used to dealing with and understands. A number of you have raised the fact that Helen is now in a two-partner practice and are worried about the ability to complete the project on time, especially if something untoward happens. (She has answered that today in her reply to questions.) Most of the work can be prepared well in advance and will not be a huge rush job at the end. McMillan & Co say they will step up, but what I saw in play last year was a culture, which did not provide the promised support to either Helen, nor when another staff member suffered a work related injury due to lack of OSH oversight, did they relieve her of her duties in a way to ensure her best recovery. There have been a number of resignations in the past few months there and hence the current spate of job vacancies advertised.
To sum up I reiterate, I think both McMillan & Co and Helen with her new firm would do a professional job. There are risks no matter, whom we choose to represent us in the next phase of our project. This is not about winning, but making the best decision on the basis of all the relevant information we can assemble. For me on balance due to Helen’s history with the project, alignment with cohousing and certainly my personal values, greater containment around costs, the advice received from my own lawyer, who represents a quarter of the group, my preference is to continue with Helen, working in a practice supportive of women practitioners. Conversely I have grave concerns about the culture at McMillan & Co from my own observations and the recent spate of resignations, their lack of understanding of our project, highlighted in Simon Milne’s response to a question about changing unit-holders, and importantly the additional and spiralling costs I expect from them. I would be remiss as a director, were I not to point out such matters. And finally I think it would reflect badly on UCOL and the project to let go a lawyer, who has given extraordinary and diligent service to the project for 6 years.
I hope the discussion can focus around facts and good information and increase understandings of how people come to hold opinions, which may not align with our own, in a spirit of community goodwill, learning about each other, so that we can move forward together.
Regards, Catherine
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