Yesterday, historical author Courtney Milan wrote An Open Letter to Agents.
Today, she follows up with a long, but eminently readable discussion of agency publishing and conflicts of interest.
Agents who publish their clients are engaging in unethical behavior.
The only services that I think an agent must avoid are the following:
* Services that involve self-dealing. That means, the agent can’t sell the author to her own publishing house and get a higher percentage of the take. That creates incentives for the agent to not negotiate as hard with competing publishing houses, creates doubt on the part of the author as to whether the agent is really trying to exploit her material.
* Services that invert the principal-agent relationship. In the principal-agent relationship, the author’s essentially in the driver’s seat. That means, if an author says, “I can’t work with that editor; we need a new one,” the agent assisting with self-publishing needs to help her find a new one. (Of course, you can try to clean up the relationship and figure out what went wrong, too.) If the author says, “That cover is crap. We need a new one,” the agent works on finding a new one. If the agent’s vision differs too much from the author’s vision, the self-publishing relationship probably isn’t a good fit. But if the agent is actually publishing the author, what does she do if the author says, “That cover is crap. We need a new one.” What if the author does it four times in a row? Think about that. As a publisher, you are in the driver’s seat. As an agent, you are working for the author. Both those things cannot be true at the same time. I do not believe you can function as someone’s agent if you take the reins from the author’s hands, and I don’t think you can function as a publisher if you don’t take the reins from the author’s hands. These two hats do not fit on the same head.
I have not heard anyone who understands the concept conflict of interest explain to me why providing services that would touch on this are not a conflict of interest. I’ve heard agents say, “I just won’t let it be a conflict” or “our interests are never perfectly aligned, so why bother?” but sorry, those things are cop-outs.
. . . .
I’m more disturbed by someone who says, “I will avoid a conflict of interest because if the interest conflicts, I will act as an agent instead of a publisher,” because that tells me that this person has never studied how professionally irresponsible behavior takes place. That’s where it starts–by telling yourself that you can minimize the impact by not doing anything wrong.
No. You minimize the impact of a conflict of interest by not putting yourself in a situation where conflicts of interest will occur.
. . . .
I believe that the person who says, “It’s not going to be a problem” is someone who is not self-aware enough to avoid problems. And even though I may trust that person’s intentions, I don’t trust their results. I’m fundamentally a process person. I think that people are more likely to save money if they transfer it into a second account, instead of telling themselves not to spend it unless they really need it; I think that the best way to avoid eating too many cookies is not to buy any; I think it’s a good idea to take away someone’s keys before they start drinking; and I think people are more likely to do good because they make themselves keep away from temptation entirely. Process leads to prophylactic rules–meaning they’re by necessity cut larger than they need to be, to avoid harm. They may seem stodgy and weird, but the rules of agency relationship have arisen out of long experience.
As far as I remember, and as far as I’ve been able to ascertain, general agency law offers the same advice: an agent in a principal-agent relationship needs to avoid even the appearance of a conflict. Keep to good process, and you’re not creating a risk. Create a risk, and you’re acting irresponsibly. Even if that risk is never actualized into actual harm, that’s irresponsible.
. . . .
It’s easy to trust an agent when things are going well. But we all know that when things don’t go well, people naturally tend towards blame. They want to look for reasons–and we all know that in publishing, sometimes there really is no reason, or sometimes the reason is something that’s totally out of our control. But now, the client is looking, and they start wondering: Did my agent fail me? Did my agent not put her all into negotiating a better offer from that house because she wanted to make her own house look attractive? Did she do her fail to place my manuscript before the right people at better houses, because she really wanted to publish me herself?
It doesn’t matter if there’s merit to the argument. The doubt is there. It’s insidious. It’s hard to shake loose, and that’s the kind of thing that can undermine agent-client trust. It’s not big, and it’s not flashy, but it’s real.
. . . .
“But,” someone might say, “my client has never mentioned having a problem with my conflict of interest!”
Tough beans. It’s the agent’s job to remain free of conflicts, not the author’s job to police them.
A conflict of interest is not something that is decided by the author and the agent. It’s decided by common law. There are real legal principles at issue here. You can’t just make up an answer and think that’s good enough.
Link to the rest at Courtney Milan
Passive Guy congratulates Courtney on presenting the conflict of interest issues in a way that any non-lawyer should be able to understand. She describes real-life situations for agents and authors and how the conflict inherent in the agent-as-publisher can poison those relationships even if both parties have the best intentions.
Had you sat through as many legal ethics presentations as PG has, you would have a greater appreciation for Courtney’s achievement.