Top Scottish KC Cleared of Professional Misconduct
A prominent lawyer, Andrew Smith KC, has been cleared of professional misconduct following allegations related to his conduct during a legal dispute over dating apps.
Smith instructed lawyers to appeal to the Court of Session after the Faculty of Advocates complaints committee found him guilty of three counts of professional misconduct. The complaint originated from a man involved in a civil dispute with two former business partners.
Last July, Smith lost his appeal when the tribunal upheld key findings against him, prompting him to initiate further legal action at the Court of Session.
Smith has now succeeded in overturning the disciplinary decision arising from a prolonged legal conflict concerning two dating apps, Bender and Brenda.
Background of the Dispute
The complainant, Steven Elliott, had planned to launch the apps with two associates, Steven Worley and Kevin Farrell, in 2011. However, the three men had a falling out, and Elliott attempted to launch the business independently.
This disagreement led to civil litigation beginning in 2013, initiated by Worley and Farrell, who were represented by Smith. Multiple court cases ensued over control of the business and its intellectual property.
Elliott first lodged a complaint regarding Smith's conduct in the legal proceedings in 2018.
He alleged that Smith had become personally involved in his clients' business affairs, which contravened the advocates' rule book, the Guide to the Professional Conduct of Advocates.
Initial Findings and Appeals
In 2024, the Faculty of Advocates complaints committee agreed with Elliott's complaint and found Smith guilty. The committee stated that Smith had failed to uphold an advocate's "fundamental obligations" and had not maintained his "independence".
Smith appealed the complaints committee's decision to the faculty's disciplinary tribunal.
However, last year the tribunal upheld the key findings against him, which led Smith to pursue an action in the Court of Session.
Smith's legal team contended that he had not become personally involved in his clients' business affairs. They maintained that he was acting solely as their advocate and not as a participant in the business.
They also noted that an investigating committee had previously found in Smith's favor on this critical point.
Arguments and Court Judgment
Smith argued that there was no clearly identified conflict of interest, which should have resulted in the complaint being dismissed.
In a written judgment published by the court, Lord Colbeck upheld the arguments presented by Smith's legal team.
"I will sustain the third plea-in-law for the petitioner and reduce the decision of the disciplinary tribunal of 18 July 2025."
The court found that the complaints committee erred in rejecting the earlier finding without adequately explaining its reasoning.
Smith's lawyers argued that the disciplinary tribunal repeated this error by failing to address the committee's lack of reasoning.
The tribunal had acknowledged that the committee did not find Smith acted dishonestly or in bad faith.
Instead, the issue concerned a misunderstanding of professional boundaries.
However, the tribunal emphasized that the Guide to the Professional Conduct of Advocates places "considerable importance to the requirement for an advocate to have absolute independence, free from all other influence, especially such as may arise from his personal interests," and stated the complaints committee was entitled to conclude Smith's conduct "amounted to professional misconduct."
Smith had previously received a severe written censure.
Final Ruling
Lord Colbeck concluded that the tribunal's decision could not stand because the disciplinary bodies failed to provide adequate reasons for rejecting the earlier finding that Smith was acting as counsel rather than becoming personally involved in his clients' business affairs.
The judge noted that while the complaints committee was entitled to disagree with the investigating committee, it was required to clearly explain why it rejected the earlier finding.
Lord Colbeck ruled that the tribunal failed to address this issue during Smith's appeal.
He concluded that the findings of professional misconduct could not stand and reduced the tribunal's decision accordingly.
