Top Scottish KC found guilty of professional misconduct

A top Scottish KC has been found to have acted in a “serious and reprehensible” manner in a legal battle over a dating app business in which he had a “close personal involvement”.

The Faculty of Advocates complaints committee found Andrew Smith KC failed to adhere to an advocate’s “fundamental obligations” and found him guilty of professional misconduct.

The finding comes after a complaint by Steven Elliott, who had been involved in a civil dispute with two former business partners over the control of two gay dating apps.

Mr Smith said he was “astounded” by the committee’s decision and would be appealing.

Steven Elliott told the BBC the legal complaints process was designed to “make normal people give up” but that his victory demonstrated “justice is attainable.”

Mr Elliot had complained that Mr Smith had a conflict of interest in a bitter legal feud over the control of the “Bender” and “Brenda” dating apps he had planned to launch in 2011 with Steven Worbey and Kevin Farrell.

Mr Elliott’s relationship with his associates collapsed, and he started the business on his own.

This breakdown led to civil court actions, with Mr Smith representing Mr Worbey and Mr Farrell.

Mr Elliott was declared bankrupt in one while in another a judge, in effect, ruled that Mr Elliott had been entitled to set up the business on his own.

Mr Elliott says defending the actions brought by his former business partners cost him hundreds of thousands of pounds. He then complained to the Faculty of Advocates about Mr Smith’s conduct.

He claimed Mr Smith had become personally involved in the business affairs of his clients, which could be in breach of the advocates conduct guide.

The committee decision focuses on three of his complaints, namely:

• Mr Smith should not have accepted the instruction to act for the two men between January 2015 and May 2018 because of a personal involvement with their business affairs

• In May 2018 he should not have accepted a further instruction to appear for Mr Worbey and Mr Farrell because he had a conflict of interest and a lack of independence

• He made improper contact with Mr Elliott’s trustee in bankruptcy in May 2018.

The case included evidence that Mr Smith had written an email which was more typical of language used by a solicitor, and in effect, suggested he was acting as his clients’ agent, contrary to advocate guidelines.

It emerged that Mr Smith introduced his brother David Smith to his clients. David Smith’s company later secured the trademarks for the dating aps.

Mr Smith also introduced his friend, business consultant David Grier of Duff and Phelps to his clients Mr Worbey and Mr Farrell.

Mr Grier had been involved in the disastrous takeover of Rangers FC by Craig Whyte, and Mr Smith represented Mr Grier in subsequent related litigation against Police Scotland.

Mr Smith had told faculty investigators that Mr Grier had become involved as a “favour to him.”

One of Mr Grier’s colleagues from Duff and Phelps was appointed as Mr Elliott’s trustee, with whom Mr Smith subsequently made contact.

The complaints committee said it was satisfied beyond reasonable doubt these introductions made by Mr Smith demonstrated “a level of interest that did indeed compromise the member’s independence… which created a conflict of interest and affected his ability to remain impartial”.

All three complaints made about Mr Smith were upheld. It said Mr Smith, “chose to ride two horses when that was professionally seriously inappropriate to do so.”

The committee concluded that his conduct “could only be described as a serious departure from the standards of competent and responsible advocates and that would be regarded as serious and reprehensible".

It continued: “The committee therefore found the member’s conduct to amount to professional misconduct.”

Six other complaints by Mr Elliott were rejected.

Complaint 'borne of dislike'

A statement on behalf of Mr Smith said he had put David Grier and his brother in touch with his clients only after the litigation was concluded.

The statement said Mr Elliott’s complaints were “borne of the fact that he dislikes Mr Smith, who did no more than seek to right a wrong committed by Mr Elliott after the litigation was concluded”.

It went on to say that an investigation committee set up by the Faculty found that Mr Smith “had not acted improperly; that he had no business interest in the affairs of Worbey and Farrell; that his assistance to them was after the case was effectively terminated; and that his meeting with …the Trustee, was at her request.”

It continued: “In addition, the single appearance in court after the introductions to Mr Grier and David Smith was a formal one and justified.”

The statement added that the complaints committee “has failed to take into account these and other critical findings by the investigation committee”.

The decision can now only be overturned on appeal. The committee is now considering what penalty should be imposed and has asked Mr Smith for a written representation within 14 days.

Mr Smith intends to appeal the decision.

Mr Elliott, who now runs a LGBTQ app business, said the complaints process was stacked against ordinary people.

He said: “It’s designed to discourage and defeat anyone who is not a lawyer, protecting those within the profession at all costs.

“Andrew Smith KC … made a mockery of the complaints process and turned it into an abusive attack on my character, all of which was designed to distract from him having to justify his own reprehensible professional misconduct.

“My victory demonstrates that, even in an unequal system, justice is attainable, though at significant personal cost."