Changing Agents Gracefully

I’m leaving Dork Associates, Mr. Dork. But it’s nothing personal.

Most agents are, in reality, pretty nice people. Your own current agent might be witty and charming—but you don’t have an agent for entertainment sake. You want someone to represent you who is both connected and knowledgeable. 

People leave their agents every day, and yet, the process of changing agents can be an emotional and confusing one. In fact, before you change, you might want to pause and rethink the situation. Is this agent really not doing her job, or are your expectations unrealistic? ...Has the agent stopped shopping your work, is now willing to take whatever contracts are offered, and not going out of her way to boost your career to the next level? If so, you might be quite right in wanting to find more fertile field.

After trying to repair the relationship with your agent, or simply deciding that mending fences is impossible, prepare to leave in a way that takes into account the full range of business realities.

“Keep it friendly but professional,” suggests Kristy Montee, one-half of the sister team writing the NYTimes bestselling Louis Kincaid and Joe Frye mysteries by P. J. Parrish. “Thank him for his work on your behalf, then simply state that the time has come for you to move on.”

You don't need to explain your reasons any further, counsels Montee. This breakup between author and agent is a common fact of life in publishing. “You can do it on the phone, even though that might be awkward. But it might be best to fire the agent by writing a great letter.”* Again, she advises, say something positive, but approach it in the context that the relationship has run its course and that you appreciate all that was done. Wish him the best.

“And don't feel guilty. This is your career,” Montee notes.

What is the agent thinking while all this is happening? Long-time agent Peter Rubie, CEO of Fine Print Literary Management in Manhattan, NYC, admits that the breakup is always at least somewhat awkward. “No matter how civilized you may be in your handling of this, one party or the other will feel a frisson of resentment, even if that quickly dissipates.” Strong feelings about such a separation are inevitable, he says.

”However, an agent friend of mine told me many years ago: ‘Everybody leaves,’ and that comment has helped me keep a balanced perspective,” continues Rubie. “The best way for either party to handle this is to just be firm but pleasant, polite, and professional, and not get drawn into an excited or bitter exchange.”

Authors seem to be split as to whether to be completely out of a contract with the first agent before seeking a second agent, or to line up another agent prior to quitting the first. Agents, as well, have mixed feelings about taking on a client who hasn’t left the current agent, and one told me recently that she won’t consider speaking to anyone who still has representation. “I might be wasting my time,” said New York’s Grace Morgan. “That author might turn around and stick with her old agent, despite our discussions.”

Rubie’s take is for an author and agent to sound one another out is perfectly reasonable. “That is a far cry from promises of intent. I then usually tell authors in this position that they need to conclude the relationship with the current agent first.”

If Rubie is interested in having the author as a client, he’ll indicate a willingness to talk seriously once that existing arrangement is resolved. “I don't want to be in a position where I appear to be poaching someone else's client.”

Commissions Are the Question

An even more crucial consideration in moving on has to do with sales and money. Rockville, Maryland publishing attorney Daniel N. Steven has this to say: “In general, upon termination of your agency agreement, your agent loses authority to make a deal but would be entitled to a commission on any sale made before the date of termination. If the book is out on submission, and the editor calls the agent to buy after the date of termination, the editor must be referred to the author, and the agent would not receive a commission on the sale.”

That’s the ideal for the author, of course, but Steven adds that the contract may have a clause or clauses in the contract that confer the commission to the agent in such a case.

“As always, your agency agreement controls these issues,” comments Steven.

Florida contract attorney and author Phyllis Towzey suggests you “take a close look at your contract with your agent before issues like this come up--preferably before you even sign--and either have it reviewed by a lawyer--always the safest course of action--or at least make sure the terms are all clear to you.”

What the word “sold” may mean can be determined by a definition in the contract itself. Towzey notes that many contracts have an opening section defining terms, usually in alphabetical order. “The section would include something like, Sold: For purposes of this Agreement, ‘sold’ shall mean [that a publishing house has extended an offer ...] or [that an offer from a publishing house has been accepted by Author...] or [that Author has signed a contract with a publishing house ...].”

She also advises, “Get your agent to explain the situation in the hypothetical--answering the question ‘what happens if...’ Then confirm that understanding in writing, preferably by making a note on the contract itself, clearing up any ambiguities, and you both initialing it.”

If your contract does not define the term, then, she notes, the custom in the industry would control. “Unfortunately, people do get into legal disputes over what the ‘custom in the industry’ is on particular points.” 

If the contract isn’t clear as to the meaning of the word “sold,” Towzey suggests that when you withdraw from your contract, you consult a literary attorney—expensive, “but still much cheaper than having your former agent later sue you when one of your books sells” or to, at the very least, FedEx the former agent a letter stating what you believe the contract term to mean and how you understand it affects your respective rights. 

“For example: 

“Dear Former Agent,

“I have reviewed our Agreement and I understand that you will remain Agent of Record on any works sold on or before ____________, the effective date of the termination of our business relationship. It is my understanding that ‘sold’ means [insert what you think it means--for example, that an offer has been extended by a publishing house]. It is my understanding that you have submitted project A to X, Y and Z houses, that an offer has been extended for project B by house W, and that you have still have project C which I sent to you inhouse and have not submitted it anywhere.

“Based on the foregoing, it is my understanding that you will remain Agent of Record on project B, but that you have no right to receive any future remuneration with respect to projects A and C. It is my understanding that I may instruct my new agent to contact X, Y and Z houses regarding project A, without the formality of my withdrawing the submission and resubmitting through my new agent.

“If you disagree with the any of the foregoing, or have n fact submitted any other projects not mentioned herein or received any other offers on my behalf, kindly advise me of same within the next ten (10) days. If I do not hear from you to the contrary, I will assume that the foregoing information is correct and act accordingly. 

“Sincerely,  etc.”

Towzey who is a contract attorney, but not a publishing attorney specifically, adds this is simply general advice and not a definitive legal opinion intended for anyone reading this article.

The best advice in changing agents is to stick to what’s polite as well as ethical and legal. In being courteous, however, don’t let your rights be trampled on, and be sure not to give away more than you have to. Know what you’re entitled to and what you want, and be firm.

*Many authors feel strongly that if the relationship has been a long and fruitful one, you owe your agent a telephoned termination.