Judge quashes disciplinary tribunal decision in Scottish KC case

A top lawyer found guilty of professional misconduct has won the first round of a battle to clear his name.

Andrew Smith KC was censured by the Faculty of Advocates complaints committee in 2024 over his conduct in a civil dispute about a gay dating app.

Smith failed in his first bid to overturn the finding last year, when the faculty's discipline tribunal rejected an appeal.

Now a judge at the Court of Session has quashed the decision of the tribunal, which will now hear a fresh appeal. Until then, the original finding of professional misconduct remains in effect.

That ruling was made during a protracted legal feud over two dating apps, Bender and Brenda.

The complainant, Steven Elliott, had planned to launch the apps with two friends, Steven Worley and Kevin Farrell in 2011. The three men fell out and Elliott tried to launch the business on his own.

This led to civil litigation starting in 2013 from Worley and Farrell, who were represented by Smith. Several court cases followed over the control of the business and its intellectual property.

Elliott first complained about Smith's conduct in the cases in 2018.

He claimed Smith had become personally involved in the business affairs of his clients, contrary to the advocates' rule book, the Guide to the Professional Conduct of Advocates.

In 2024, the Faculty of Advocates complaints committee agreed with the complaint and found Smith guilty. It said he had failed to adhere to an advocate's "fundamental obligations" and to maintain his "independence".

Smith appealed the complaints committee's decision and sanction of a "severe written censure".

But last year the Disciplinary Tribunal upheld key findings made against him, prompting him to raise an action in the Court of Session.

His lawyers argued that Smith had not become personally involved in his clients' business affairs.

They said he was acting as their advocate, not as a participant in the business.

They also said that an investigating committee had already found in his favour on that key point.

Smith argued that there was no clearly identified conflict of interest and that this should have resulted in the complaint not being upheld.

In a written judgment published by the court, Lord Colbeck upheld the arguments made to him by Smith's legal team.

He wrote: "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 heard that the complaints committee was wrong to reject that finding without properly explaining the reasons why it did so.

Smith's legal team argued that the disciplinary tribunal then made the same mistake by failing to deal with that earlier committee's lack of reasoning.

The tribunal acknowledged that the committee did not find Smith had acted dishonestly or in bad faith.

Rather, the issue had been around a lack of understanding of professional boundaries.

However, it said the Guide to the Professional Conduct of Advocates attached "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 said the complaints committee was entitled to conclude Smith's conduct "amounted to professional misconduct".

Lord Colbeck concluded that the tribunal's decision could not stand because the disciplinary bodies had failed to give adequate reasons for rejecting an earlier finding that Smith had been acting as counsel rather than becoming personally involved in his clients' business affairs.

The judge said the complaints committee was entitled to disagree with the investigating committee.

However, it was required to explain clearly why it had rejected the earlier finding.

Lord Colbeck ruled that the tribunal failed to address that issue when it considered Smith's appeal.

He concluded that the findings made by the disciplinary tribunal could not stand and reduced its decision. The disciplinary tribunal will now consider Smith's appeal afresh.

UPDATE 17/06/26: This article was updated after the Faculty of Advocates clarified that the Court of Session ruling related to the decision of the disciplinary tribunal, and that the original decision of the committee remains in place until a fresh appeal is heard.