Collateral purpose, communications with represented persons, record keeping, candour, hierarchy of duties, and conflict in family law adjacent disputes
Introduction
Most conduct issues do not begin with a solicitor deciding to ignore a rule. They usually start in a much less dramatic way. A client is upset. The instructions are urgent. The facts are still moving. A position that is arguable starts getting pushed a bit harder than it should. A letter is drafted to apply pressure as much as to explain a case. Nobody thinks, at least at the time, that this is the beginning of a professional conduct problem.
That is why these issues matter in day to day practice. They do not usually arise in neat textbook form. They come up in hard matters where property, family dynamics, companies, trust structures and personal grievance all overlap. The pressure on the solicitor is real. The temptation is to collapse legal analysis into client momentum. Good practitioners resist that. They stop, identify the actual issue, work out what the file supports, and then make a decision they can defend later if they have to.
This article looks at a reconstructed scenario drawn from correspondence in a live dispute. It is not written to make findings against anyone. The point is narrower and more useful. The point is to show where a competent practitioner ought to slow down and ask the right questions before taking the next step.
The framework and the hierarchy of duties
The starting point is ASCR rule 3. A solicitor’s duty to the court and the administration of justice is paramount. Everybody knows the phrase. The problem is that it is often treated as something ceremonial rather than operational. In reality it does work. It limits what can properly be done in correspondence, in affidavits, in ex parte applications and in the advice given about using court process.
Rule 4 fills out the ordinary working obligations. Act in the client’s best interests. Be honest and courteous. Deliver legal services competently and diligently. Avoid compromise to integrity and independence. Comply with the rules and the law. None of that is controversial in the abstract. The difficulty is how those obligations sit together when a client wants aggression, speed and leverage all at once.
The answer is that the client’s interests do matter, but they do not outrank the administration of justice. The solicitor is not just a transmitter of instructions. The solicitor has to decide whether the step proposed is lawful, proper, supportable on the available material and proportionate to the issue actually in dispute. That sounds obvious. In practice, it is where many files go wrong.
Collateral purpose and abuse of process
When practitioners talk about collateral purpose, they are usually referring to a mix of abuse of process principles and ASCR rule 21. Rule 21.1 matters because it goes to the advice given about invoking the court’s coercive powers. The advice must be reasonably justified by the material then available. It must be appropriate for the advancement of the client’s case on its merits. It must not be given principally to harass, embarrass, or secure some collateral advantage outside the proper purpose of the process.
The High Court in Williams v Spautz made the broader point in orthodox terms. A proceeding can amount to an abuse of process where its predominant purpose is something other than the purpose for which the process exists. Batistatos later reaffirmed that abuse of process is a flexible supervisory doctrine directed to protecting the administration of justice from misuse. The doctrinal position is clear enough. The real difficulty is factual. Mixed motives are common. A caveat might genuinely protect an asserted equitable interest and also put commercial pressure on the other side. A subpoena might be relevant and also inconvenient. The existence of strategic benefit is not the end of the analysis.
The practical question is whether the process is still being used for its proper legal purpose, or whether that purpose has become secondary to some broader campaign objective. That is why file discipline matters. If a practitioner later has to explain why a caveat was lodged, why urgent relief was threatened, or why an interlocutory application was made, the answer should not be reconstructed from memory. It should already be on the file in plain terms.
Why this issue becomes sharper in family law adjacent disputes
This problem shows up often in family law adjacent matters because the dispute rarely stays in one lane. A breakdown in a relationship spills into company control, trust distributions, property dealings, loans, caveats, tax issues and sometimes defamation style threats. Clients often see every available pressure point as part of one larger fight. Lawyers have to resist that way of thinking.
If the matter concerns a property acquisition, a caveat, alleged oppression, and at the same time a broader disagreement tied to a Binding Financial Agreement or family property position, then each proposed step needs its own analysis. What legal right is actually being protected. What evidence supports it now. What process is being used. Is there any sign that the step is really being taken to force movement in some different controversy.
That is not an academic exercise. It goes directly to how the court, the regulator, and a costs assessor may later look at the conduct. It also affects the quality of the advice. A practitioner who keeps separate the legal entitlement from the broader personal conflict is more likely to make sound decisions and less likely to become part of the client’s grievance machinery.
Communicating with represented persons
ASCR rule 33 is easy to summarise and easy to get wrong in practice. A solicitor must not communicate with a person known to be represented by another practitioner about the subject of the representation unless one of the recognised exceptions applies. The exceptions are familiar enough. Prior consent. Genuine urgency. A limited inquiry to establish representation. Notice of intention to communicate where the other practitioner does not respond within a reasonable time and there is a reasonable basis to proceed.
The harder issue is usually not the wording of the rule. It is uncertainty about who actually acts for whom, and in relation to what. Modern disputes are often fragmented. One firm may act for a company in a caveat dispute. Another may act for an individual in family law proceedings. A third may be involved in related commercial or insolvency matters. Assumptions become dangerous very quickly.
That is why retainer clarity matters so much. If correspondence gives the impression that a firm acts for both an entity and an individual, and later seeks to narrow that position, the right response is not to argue over tone. The right response is to identify, in writing, who acts for whom, in what capacity, and on what issues. Once that is done, the communication pathway becomes much easier to manage. Until it is done, the risk of an avoidable complaint is real.
Record keeping
There is no single ASCR provision headed record keeping, but the obligation is still there in any practical sense that matters. It comes from competence, diligence, supervision, client communication obligations and the basic need to maintain a file that makes sense to someone other than the person who opened it. A good file is not just good administration. It is often the difference between an arguable decision and an indefensible one.
The Victorian regulator has repeatedly stressed the importance of coherent digital records and proper file notes, particularly in high conflict matters. That should not surprise anyone. If there is later a complaint about improper purpose, misleading correspondence, a conflict issue or direct contact with a represented person, the first question will be simple. What does the file show. Not what does the solicitor now say they intended. What was actually written down at the time.
In practical terms, a defensible file in this kind of matter should include a clear retainer map, file notes of material conferences and calls, written confirmation of substantial advice, the evidentiary basis for serious allegations, conflict check results and the reasoning behind urgent or coercive steps. If informal instructions are given by message or phone, they should be drawn back into the file promptly. That is not overkill. That is basic self protection.
Candour and corrective obligations
Candour is one of those ideas that is often spoken about too broadly. There is no general obligation to volunteer every fact that may help the other side. But there are strict obligations not to mislead the court or an opponent, and to correct a misleading statement once the solicitor becomes aware of it. Rules 19 and 22 matter here. So do the disciplinary decisions in Mullins and Garrett, although they are often cited more loosely than they should be.
The better way to understand those authorities is this. A solicitor cannot create or maintain a materially misleading impression and then quietly take advantage of it once they know it is false. The problem is not mere tactical silence in the abstract. The problem is continuing to benefit from a representation that is no longer accurate, especially where the representation came from the solicitor’s side in the first place.
That issue comes up in many ordinary ways. A factual premise in a letter changes after further documents arrive. An urgency argument weakens. A statement about who is represented by whom turns out to be wrong. Once the solicitor knows the earlier position is materially misleading, correction becomes part of the job. It is not optional, and it is not answered by saying the other side should have worked it out for themselves.
Conflicts in family law adjacent work
Conflicts in this area are often more fact sensitive than practitioners first assume. Rule 11 deals with current client conflicts. Rule 10 deals with former client conflicts and the risk that confidential information may be used to a former client’s detriment. Rule 12 deals with the solicitor’s own interests. Those categories are doctrinally distinct, but in practice they can bleed into one another where family members, companies and related entities have all been serviced by the same firm at different times.
That is one reason family law adjacent disputes require discipline at the intake stage. A firm may have acted historically for a company, one spouse, both spouses in a non contentious matter, or in relation to trust or property documents that now sit in the background of contested proceedings. Once the dispute hardens, the question is no longer simply whether anyone remembers a confidence. The question is whether the court may conclude that the firm possesses information or loyalties that make continuing to act unfair or appear unfair.
The familiar authorities remain useful. Kallinicos v Hunt reminds practitioners that restraint applications require evidence, not suspicion. McMillan has particular relevance in the family law sphere because it focuses attention on whether confidential material was imparted and whether there is a real risk of misuse. Osferatu refined the language and moved away from loose references to merely theoretical possibilities. Put simply, the court is looking for a risk that is real and supported by evidence, not invented for tactical purposes.
Applying those principles to the reconstructed scenario
The reconstructed scenario is a good teaching example precisely because it does not present one clean issue. It presents several smaller issues sitting on top of each other. There is apparent uncertainty about the scope of representation. There is a property and caveat dispute sitting beside a broader personal and corporate conflict. There is a conflict allegation arising from prior employment with an entity connected to the dispute. And there is the usual risk, present in many hot matters, that correspondence begins to do more than it should.
A prudent practitioner in that situation would likely pause at several points. First, the retainer should be mapped with precision. If the firm acts for a company but not for an individual spouse on family law issues, that should be said plainly and early. Second, any caveat, urgent application or threat of interlocutory process should be supported by a contemporaneous note explaining the right asserted, the evidence relied on and the purpose of the step. Third, if a conflict complaint is raised because someone at the firm previously worked for a connected entity, there should be an actual investigation, not just a quick denial.
None of that guarantees the absence of complaint. It does something more realistic. It puts the practitioner in a position to explain their conduct coherently if the issue later surfaces before a court, regulator or costs assessor. In many conduct matters that is half the battle.
Practical guidance
A few practical habits go a long way in this area.
Define the retainer carefully. Do not assume everybody understands the boundary between acting for an entity and acting for the person behind it.
Record the legal purpose of coercive steps. If a caveat, injunction or urgent application is justified, the file should say why in simple terms.
Keep serious allegations tied to material you actually have. If the evidentiary footing is incomplete, the drafting should reflect that.
Correct your own misleading statements quickly. Delay only compounds the problem.
Take conflict allegations seriously enough to investigate them. A short written record of that investigation is often worth the effort.
Keep the tone of correspondence under control. Once a letter starts reading as though it is written to wound, embarrass or escalate, the forensic judgment has usually slipped.
These are not glamorous habits, but they are the habits that keep practitioners out of avoidable difficulty. They also improve the standard of the work itself. A measured file is usually a better litigation file.
Conclusion
The conduct rules are sometimes treated as something to be checked after the event, usually when a complaint has already arrived. That is the wrong way to think about them. Properly used, they are decision making tools. They help a solicitor test a proposed step before the letter goes out, before the caveat is lodged, before the call is made and before the client is told that an aggressive course is open.
The broader lesson from this kind of dispute is not complicated. Identify who the client is. Work out the actual purpose of the step. Check what the evidence really supports. Keep the file in order. Correct misleading impressions that come from your side. Do not let the client’s sense of grievance become the organising logic of the retainer.
That is not lofty ethics. It is just disciplined practice. In hard litigation, disciplined practice is usually what separates a forceful solicitor from a reckless one.
Authorities and materials cited
Legal Profession Uniform Law Application Act 2014 (Vic)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, including rules 3, 4, 10, 11, 12, 19, 21, 22, 33 and 37
Victorian Legal Services Board and Commissioner, Going Digital: Record keeping guidance, 28 June 2023
Victorian Legal Services Board and Commissioner, Family law and complaints, a guide for lawyers, 29 July 2025
Williams v Spautz (1992) 174 CLR 509
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Kallinicos v Hunt [2005] NSWSC 1181
McMillan & McMillan [2000] FamCA 1046
Osferatu v Osferatu [2015] FamCAFC 177
Legal Services Commissioner v Mullins [2006] LPT 12
Legal Services Commissioner v Garrett [2009] LPT 12
