Friday, March 07, 2008

Divorcing Your Agent

Is it ethical to query agents, just to gauge interest in my work, while still represented by an agent? While I can understand the analogy about not quitting one job until you've lined up another, I think that a writer's relationship with an agent is more like a marriage . . . meaning, you don't start "dating" until you've ended things with your current partner.

I sat on this question for quite some time, and sat and sat. I thought about how difficult and how stressful it is for authors to finally have an agent and decide they are going to start over. And I thought about the unwritten ethics of agents poaching authors from other agents (unethical) and authors looking for new agents while still under representation (unethical), and I had to think about my feelings on all those subjects.

And here’s what I came up with. Firing an agent and hiring a new one is not the same as finding a new landscaper or changing doctors, because landscapers and doctors are getting paid for the work they are doing as they are doing it. An agent is not. An agent does a lot of work before ever getting paid and a lot of work in between royalty checks with no guarantees more payment will come. So while I know it’s incredibly stressful for an author to suddenly go agentless again, I think that you need to make the decision to fire your first agent before querying others.

Let me go into more detail. I do a lot of work for my clients that they don’t necessarily know about. If a book is out on submission I am spending hours and hours honing my query letter, I am talking to editors about your work, and researching my own list of editors to find just the right people. Finding the right publisher isn’t enough, I need to find the editor who I know your writing, your voice, and your story will speak to. Once the book is out I’m continuing to build my list of possible submissions and I’m sending editors updates, follow-ups, and checking in. In other words, I’m nagging up a storm. While doing all of this I’m spending time on you and your work and not on my other clients. And I’m not getting paid.

For those clients who are not out on submission, but who are already sold, I’m working on subsidiary rights, I’m thinking about the directions of their careers, I’m hounding editors for checks and contracts and negotiating. I’m talking to editors about list placement and what can be done to build a bigger and stronger career. In general I’m working to make my client a star. And there’s no guarantee I’m going to get paid what I’m worth. In other words, sure, I’ve taken my 15% of the advance, but in this business there’s no guarantee that I’m going to be making anything more. Royalties are not guaranteed. Most important, though, it would be a shame if I’m working with the editor to set the stage for your next deal only to find out, a short time before that deal comes, that Aggie Agent is handling it instead and that I’m out. I really have no recourse as long as I get that certified letter, and Aggie doesn’t have to do much of anything. I’ve already set it up.

I also think there’s a trust issue. Much of an agent-author relationship is built on trust. You trust that I’m not going to take on another author that’s directly competitive with your work. Sure, I’m going to take on more cozy mystery authors, but I’m not going to take on another author writing a knitting mystery. That’s a series that would cut into the exact market for the knitting mystery series I already have, and do you really want to find out that your agent is also representing your biggest competitor? I also trust that you’ll be honest with me. If you don’t think the relationship is working any longer, then I need to know that up front. I need to know what’s wrong and if, in your mind, I’m still working for you.

For me, I’m suspicious of the author who is querying agents while still under representation. It seems sneaky and underhanded to me and it immediately sends up a red flag. Many times I have been queried by authors who have fired their agents, but are waiting out the grace period. I’m fine with that because the other agent already knows what’s going on. I’m not comfortable working behind the back of my colleagues, however.

I do think your example was right. While the author-agent relationship is obviously a business relationship, we all know it goes much deeper than that and is thought of as more of a marriage. Why wouldn’t it be? You often call your books your babies, so why wouldn’t you be looking for just the right “partner” to take that book out into the world? You wouldn’t think it was right to answer personal ads while still married, while your partner is still busy keeping the relationship alive, and you wouldn’t want to know that the person who wrote the ad you just answered is already in a relationship either. I think the agent relationship is similar. It’s built on trust and, let’s face it, it involves emotions. Handing your baby over to someone to raise it and present it to the world isn’t easy. It takes trust, and if you decide to trust me enough to take that job on I trust you enough to value our relationship.

Let’s put it this way. If you promise to be honest with me, and fire me before seeking out other representation, I promise to stick by you through big deals and no deals and only quit when I feel the passion has died.

Jessica

28 comments:

honey said...

One obvious analogy: the lawyer who takes a case with a contingent fee. After a lot of work, the lawyer tells the client that the case is probably worth $X. Unhappy, the client goes lawyer-shopping. Unscrupulous or ignorant lawyer 2 tells the client the case is worth $XYZ. The client promptly fires lawyer 1, hires lawyer 2, and lawyer 1 has to hand over all his files, which generally reflects most or all of his effort.

This comes up all the time. When (if) the client collects, the judge usually divides the legal fee so that lawyer 1 gets some pay, usually based on the number of hours worked.

I suppose this situation is less common in publishing.

Anonymous said...

I like to treat any business relationship like I would a personal one; if you give that level of trust to someone and invest in a long-term commitment, the respect you give one another should be a two-way street. So long as you're both giving and being honest and open with one another, there should be no need for "seeing someone else".

Good food for thought, thank you.

-Rachel Glass

Chumplet said...

You explained your side so eloquently. It's so true -- if you're thinking of divorce, don't go shopping for another partner until you've either moved out or served the papers. It's only fair.

The same can be said while shopping for an agent. If two of them want to go out for coffee, you should at least let them know before you decide to move in with one of them!

Anonymous said...

Interesting response, but you speak (only) from the perspective of an agent who does her job (i.e., works in advance of earning money which, as a result of her efforts, is sure to come). The agent we want to divorce is not quite so diligent--what then?

Megan Frampton said...

Thanks for posting this. I divorced my agent before looking for a new one, and it's been hairy, but I wouldn't have felt right searching while still under representation. Like you said, there's a great deal of trust there, and if the new agent knows I shopped around before letting go of the old one, how will she be able to trust I won't do the same to her?

CM said...

anonymous @11:42, why would you feel any compunction about firing a non-diligent agent immediately? The only reason I can imagine why some would cheat on your agent (and this is obviously not a sufficient reason) is because you'd rather have your current agent than no agent. But a bad agent is worse than no agent.

It's like saying you shouldn't have to divorce your husband before dating again because your husband beats you. Yeah, maybe he doesn't deserve a lot of respect.... but why would you hesitate to leave your abusive husband?

Anonymous said...

Anonymous 11:42

I just went through this dilemma myself. It involved a lot of soul searching and lost sleep to decide to leave an agency that is top notch. However, I do not feel I am presently writing work that is a good fit for that agency. My agent was an excellent one, however I do believe that it is important for us to act with integrity, no matter the type of agent we are leaving, otherwise how can we expect to find a new agent who acts with integrity? I really believe that what goes around comes around.

Anonymous said...

I appreciate the analogies to marriage and the like, but in the end what we really have is an employer (writer), employee (agent) arrangement.

An employer is in the business, among many other things, of looking out for its business interests.

If an employee is not doing a good job with his/her responsibilities, a smart employer would not fire that employee first, leave the employer short, then go find a replacement.

The employer would most likely court potential employees (out of sight of the existing employee, of course), line someone up for that position before terminating the employee.

It would be detrimental to the business to do otherwise.

Is this the way it should be handled?

Probably not. But it happens all the time.

CM said...

Anon @ 2:23: The business interests align differently in the agent-author relationship than the employer-employee one. We live in a world where employees are plentiful and employers are scarce. This means that employers can get away with a lot of things that do not engender trust and love in the hearts of their employees. Which is why employers can (in the absence of a contract) usually fire you on the spot, but you generally have to give several weeks' notice.

Agents are not plentiful and authors are not scarce and so attempting to import the somewhat shaky practices of modern employment is probably not a good idea. One really obvious difference is that employees don't have a signed contract between the employer and the people who pay the employer stating that payments go to the employee first for the life of the project, even if the employer fires the employee. If they did, you can bet the employer would fire the employee FIRST rather than risk having to make double payments.

Your agent gets paid based on the project she works on, not based on her time. If you don't want her on an upcoming project, tell her. Abuse of her time may be punished in the contract she made you sign: if your agent's laying the ground for your new series, you need to check your contract before you hire someone else to take her place, because you could end up owing them both 15%.

And if you split amicably with your agent, you are also more likely to have her continue to make sure that the works she does represent you on continue to get her attention--because you're both still getting paid through her for those.

Plus agents are not only scarce but densely connected, and I suspect they talk.

Even if you're not convinced that you should be nice to your agent because you it's nice to be nice, you should be nice because it's economical.

Diana said...

Jessica, is there some way for the author to get a sense of how much is going on behind the scenes with his or her agent?

I mean, obviously, you can tell pretty quickly that something is going right if your manuscript is sold and you're on your way to the bestseller list, but how does a new author, whose work may be harder to launch, judge what the agent is really doing? (I assume you don't send out a monthly spreadsheet indicating phone calls made, query letters sent, etc.)

Anonymous said...

On a slightly different note: once you have split with your agent I have heard it's ok to say you are between agents but that it isn't good etiguette to say which agent you left in your query.

BookEnds, LLC said...

A few answers to your questions.

I think if you know your agent isn't working for you or don't trust she is the relationship is already dead and you should break it off sooner or later. Which seques into how you know if your agent is working for you? Some of that is trust and some of it is that you shouldn't be afraid to ask. If you can ask your agent questions and she responds, if you ask her to do things like talk to your editor and she gets back to you fairly quickly, if she does things for you when you ask she's probably working for you.

If you've split I would simply say you're between agents. I will often want to know out of curiosity, but I don't need to know for any reason other than that.

-jhf

Vivi Anna said...

I too waited until I left my first agent before looking for a new one. It all depends on the clauses in your contract as well. You have to be careful not to breach them and get yourself into a situation where you will owe two agents 15% of your money.

But I just want to say, that dont' be afraid to leave an agent that isn't working for you in whatever capacity.

Stephanie Feagan said...

Breaking up is hard to do. Painful, even. There's a certain comfort and ease that builds over time, the push-pull of a relationship that's not always all business. Once that's gone, it's frightening - but also somewhat freeing.

I recently jumped ship, with no lifeboat of another agent in sight. It was not simply amicable - I'd say we parted friends. Due to the consideration, respect and affection I felt (and still feel) for her, there's simply no way I could have gone shopping while we were still client/agent.

But even if I didn't hold her in high regard, I wouldn't go on the hunt before I'd told her I was leaving. What would be the point? It's not as though I could sign with someone else until my contractual ties with her were severed. And much like the old adage - "If he cheated on her with you, he'll cheat on you with someone else," I'd assume a new agent would look at me with less than absolute trust. Not a great way to start out.

Anyway, maybe I screwed up. Maybe I'll come to regret the decision. But no matter what, I know I did it right, and I can sleep at night with a clear conscience.

Anonymous said...

my mother always said..."if you can't put it on the headlines, don't do it."
You're right on....
Len d'

Aimless Writer said...

I thought I read somewhere that the proper way to dismiss an agent was to give 30 days notice in writing?
Either way, I think I'd just explain to agent #1 that we weren't working out and end it before I contacted anyone else. Its just the nice thing to do. The other way would feel like cheating.

Anonymous said...

My first book was agented in 1996 by a woman who acknowledged she wasn't truly an agent, but she is an author, packager, and she had a good personal relationship with the publisher of a good-sized house. Soon after, we parted ways, and have not spoken in 10 years - even though we both have maintained our mailing addresses and we live/work in the same county. During those 10 years, I slogged along on my own, sold several books and traveled a steep and often frustrating learning curve with my first publisher.

Regrettably, I am unable to locate the original 1-page agreement that I believe she and I signed. I emailed her to request that we talk, and suggested that we had tacitly ended our business relationship. No response.

I sent a straightforward yet friendly Certified Letter to her, and although the USPS confirms the address is valid, the letter was not claimed by the addressee, and was returned to me.

Is it standard that an agent remains on record and collecting her 15% forever - even if there has been no contact whatsoever in over 10 years?

What would be my next step? I am now seeking representation for an altogether different genre, and would like to tie up this loose end as best I can.

Is my quest realistic and appropriate?

Ruth Logan Herne said...

Jessica, this post offers a strong overview of the agent's role in a working relationship.

While the idea of firing an agent might seem easy to some, I think personality quirks can make it more difficult for people. An eager-to-please personality has a much harder time cutting loose than a don't-give-a-fat-rat's-patootie type would.

That variable makes it a tougher question all around.

I parted ways with my agent amicably and waited until our relationship was over before scouting the waters. In an odd way it jump-started me into a different genre which has led to two editor requests in the past two months.

Not too shabby.

Kind of like jumping into that lake, knowing you're hot, but dreading that first dash of cold.

Once in, the water feels real nice.

Ruthy

Anonymous said...

Anon 3:39

Get yourself to a literary lawyer RIGHT NOW! You should not be paying your agent if they are not selling your work. Period.

If you have sold these book on your own and "split" with your so-called agent before you did so, you DO NOT OWE HER MONEY!!!

Contact a literary lawyer right now. As in today. A lawyer will END this idiotic agreement (if there even is one with this nutjob). This is your career you must have more respect for yourself than this. Be proactive!

Anonymous said...

Anon 9:23

Thanks, Anon. I appreciate your righteous indignation, but the situation isn't quite as dire as you portray it. The agent receives 15% only on my first book, which she repped via her publisher relationship. She is not involved with any of my subsequent published books. Fact is, however, I believe that my career is about to take off in a very big way, and when increased recognition trickles down to all of my titles, I'm not entirely comfortable with her reaping the benefits. The legal route is well-advised, of course, especially since she refused to claim my Certified letter -- definitely a red flag in my book.

BookEnds, LLC said...

Anon:

I'm afraid that unless your agreement with your agent is atypical she will always receive commission on any books she sold as long as they stay in print. Should it go out of print and be reissued after a sale with a new agent she will no longer be eligible.

However, your new agent is also not eligible for commissions on that one book either. You would only be paying the 15%. Wow it might irritate you because you don't feel she is doing or has done any work for you, I would just let it ride. She does not have your future books.

I hope that answers your question.

--jhf

Julie Weathers said...

I was in real estate for a long time and it hurts deeply when you pour your heart and spirit into a project and then have a developer or owner tell you they are going with another agent. Often the new agent used my marketing plan down to the tee, which was even more salt on the wound.

Having been there, I would be very reluctant to do that to an agent.

I can't really think of any instance that justifies doing that.

I called my agents when I decided to split the sheets and asked them to return my materials and told them I was sending a certified letter.

No big blow up, just cut and dried with each of us going on our way.

It doesn't feel good and I definitely had the panicked thought I would never get another agent. Maybe I won't. Even so, like a bad marriage, staying longer doesn't make it better. Going out shopping for a new husband while you're still married doesn't make it better either. I would think the new husband prospect would just wonder when that was going to happen to him.

Anonymous said...

Thank you,Jessica,for responding to my question and confirming the industry standard. Not being the litigious type, I am inclined to follow your advice and let it ride, thereby earning valuable karma in the realm of literary representation. Your blog provides an invaluable and much appreciated service.

Anonymous said...

what of having different agents at the same time for two totally different books?
I work in several different genres of fiction and know it would be terribly hard for one person to represent such different types of books. What is the rules in such a case?
Thanks,
K.D.

Anonymous said...

As an experienced author with more than 20 books in print, I call BS on this advice.

It is simply stupid to fire your existing agent until you have lined up a new one. A bird in the hand is worth ... well, you know how it goes.

What we have here is another example of agents protecting their own interests at the expense of authors' best interests. It goes on all the time. Agents and editors see authors as disposable commodities. They are not concerned with your long-term interests unless those interests happen to coincide with their own.

Asking an agent for advice in this area is like asking a barber if you need a haircut. You will get an answer that suits the agent's agenda, not yours.

If you are dissatisfied with your agent, quietly make inquiries with other agencies. That's how the game is played, even if the New York elites don't want you to know it. And never make the mistake of believing that agents and publishers have your welfare at heart. I'm sorry to break this to you, but that is not the way this business works.

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