Some distinctions between the academic study and the practice of law

Some people who become law students never have any intention whatsoever of entering the legal profession. Some others have professional aspirations when they become law students, but change their minds during the course of their studies.

Perhaps the central point of distinction is that practitioners have clients who are hoping to achieve certain outcomes. Those outcomes will vary from routine, low-profile matters such as making a valid will, to exceptional, high-profile matters such as bringing, or defending, legal proceedings involving issues of high constitutional principle. Whatever the clients’ desired outcomes may be, however, practising lawyers act on their clients’ instructions, provided those instructions do not require the doing of anything which is either illegal or contrary to their code of professional conduct.

Of course, lawyers may advise clients as to what outcomes are most likely to be achievable, and perhaps also as to which are most likely to be genuinely in the clients’ best interests; and clients may change their minds in the light of such advice. But clients are never obliged to accept advice, no matter how sound that advice may be. Newcomers to the law frequently ask whether a lawyer is bound to accept instructions. The answer is that solicitors are always free to decline to accept instructions, although commercial considerations are such that very few solicitors will turn away work of a kind which they usually undertake.

Law students, on the other hand, in common with their teachers, enjoy greater freedom, being subject to neither commercial reality, clients’ instructions nor the rigours of the codes of professional conduct which bind practitioners. Of course, neither law students nor their teachers are entirely free from constraints. Students who wish to succeed must keep their examiners reasonably happy, while teachers who wish to remain employed, and to progress in their careers, must keep both their students and their employers reasonably happy. In reality, however, these constraints are much less limiting than those which apply to practitioners.

An important aspect of the freedom enjoyed by law students is the possibility of criticising the law. Although practitioners may, of course, also indulge in the intellectual exercise of criticising the law, in the purely practical world of advising clients, negotiating with other lawyers and appearing before courts, they are almost always limited by what the law on a particular point simply is. Admittedly, in cases involving statute law it may be possible to achieve startling results by the imaginative use of creative techniques of interpretation, while those who practise in the highest courts may have the opportunity to influence the development of the law through the doctrine of binding precedent. (Both these points are discussed further in Chapter 7.)

However, the fact remains that, under the British constitution, it is simply impossible for any court to quash an Act of Parliament. Additionally, while it is not impossible for the Supreme Court (and previously was not impossible for the House of Lords) to depart from one of its own previous decisions, in practice it may refuse to do so, in the interests of legal certainty, even if it considers the previous decision to be wrong.

Another important distinction between the worlds of academe and practice is that students are presented with fact situations on which they are asked to advise. You will investigate the techniques involved in answering such questions when you get to Chapter 11, but for the moment the essential point is simply that students are given a set of facts to which they must apply the relevant law. In practice, though, most cases turn entirely on disputes as to the facts, with both parties agreeing about which principles of law will be relevant when the issues of fact have been resolved. Of course, in some cases the process of resolving factual disputes may involve issues of law in the form of the law of evidence, which deals with the way in which disputed facts may be proved. However, in practice, arguments on the law of evidence are relatively rare, with most factual disputes being resolved on the very simple basis of which witnesses does the court believe?