Top Advocate Fails Appeal on Misconduct Finding

KC Upholds Two Professional Misconduct Counts in Dating App Dispute

A senior Scottish advocate, Andrew Smith KC, has lost his appeal against a professional misconduct ruling. The Faculty of Advocates’ disciplinary tribunal upheld two of three counts, deeming his actions in a protracted legal battle over dating apps “serious and reprehensible.”

Business Feud Leads to Disciplinary Action

The case stems from a bitter dispute over the dating applications Bender and Brenda. Steven Elliott, who had planned to launch the apps with two former partners, Steven Worley and Kevin Farrell, complained about Smith KC‘s conduct during the ensuing litigation. The legal wrangling, which began in 2013, saw Elliott declared bankrupt in one instance, though a judge later ruled he was entitled to establish the business independently.

Elliott‘s complaint, lodged in 2018, alleged that Smith KC became too personally involved in his clients’ business affairs, violating professional conduct rules. The Faculty’s complaints committee agreed, finding Smith KC guilty of three counts of misconduct for failing to maintain independence and adhere to fundamental obligations.

Tribunal Upholds Key Misconduct Counts

The disciplinary tribunal, while allowing an appeal on one count, confirmed the validity of two others. They found that Smith KC improperly accepted instructions to represent Worley and Farrell between January 2015 and May 2018 due to his close personal involvement with their business. This was seen as a breach of rules concerning independence and the obligation of trust.

The tribunal also upheld a complaint regarding Smith KC‘s representation in May 2018, noting he acted for the men after introducing them to his brother, David Smith. David Smith subsequently secured the trademarks for the dating apps through his company.

“The tribunal said the two upheld complaints were “sufficiently serious on their own to justify the conclusion that the member’s conduct in relation to these issues amounted to professional misconduct”.”

The tribunal acknowledged that Smith KC did not act dishonestly or in bad faith, attributing the issues to a lack of understanding of professional boundaries. However, they stressed the critical importance placed on an advocate’s absolute independence, free from personal interests or other influences.

Despite the upheld counts, the tribunal dismissed a third charge related to alleged improper contact with Elliott‘s bankruptcy trustee. Smith KC had previously received a severe written censure, which the tribunal confirmed would stand given the upheld breaches.

The process, which took seven years, left Steven Elliott feeling “vindicated” but critical of its length and difficulty. He stated, “I should not have had to endure a complaints process so exhausting, intimidating, obstructive, and expensive – a process clearly designed to make people give up.” Elliott is calling for reforms, hoping his experience will encourage others facing similar challenges. The legal profession is increasingly focusing on ethical conduct, with a 2023 report by the Law Society of England and Wales highlighting a rise in misconduct cases related to conflicts of interest and boundary issues.