Changing Agents: The Do’s and Don’ts

I’ve written before about some of the law that can apply when you change agents, specifically in the case of ongoing commissions for deals brokered by the first agent. For more detail, that blog post is here.

So let’s take it step by step and break down the legal and ethical ins and outs of switching agents.

There are lots of reasons why an author might be looking for new representation. Sometimes they’re dissatisfied with the job the agent is doing (or maybe not doing); sometimes the agent or the author is moving into new areas and the author’s projects no longer line up well with the agent’s interests; sometimes agents retire or move to new agencies. If the author-agent breakup is initiated by the agent, she will likely end the existing contract by giving you notice. After that, it’s fine for you to go ahead and look for new representation.

Note: If the agent is moving to a new agency, most times she’ll give you the option of moving with her, staying with the existing agency (but with a different agent), or finding a new agent at another agency. Again, she’ll set out the options for you, and you can take it from there.

However, if the author is the one initiating the breakup, it’s important to understand how to do it legally and ethically. The first thing to do is to look at your existing agent contract to figure out how to terminate the relationship with your current agent. Often agent contracts are for a particular time period (say, a year, or two or three years) which automatically renews unless either the author or the agent sends a notice terminating the arrangement. Usually, all you have to do is send a formal notice to the agent ending the arrangement. Some agent contracts will require the notice to be sent in writing in the mail to a particular address. For others, a phone or email conversation will be fine. Check what your contract says and, if you can’t FIND your contract, just tell your agent you want to end the relationship and ask how to do that. They may want to have a conversation to see if they could do anything differently in the hopes of keeping you on, which is fine, but if you ultimately decide to leave the agency, it’s your right to do so.

You should ideally end your relationship with your existing agent before seeking new representation. While there’s no law that says you have to do things this way, agents generally consider it unethical to consider representing an author who is already represented by someone else. Of course you can hide the fact you’re already represented when querying new agents, but, if the new agent finds out later that you were still represented by someone else when querying her, you may have put her in a difficult position (particularly if she knows your old agent), and that may cause tension in her ongoing relationship with you.

Note that your own contract with an existing agent may have something to say about looking for a new agent: for example, it may say that you’re not allowed to query other agents until you terminate the original agency relationship. If you seek a new agent before ending the previous relationship, you’d technically be in breach of your contract. In reality, there’s nothing much your existing agent could do in that situation because it would be hard for them to prove they suffered any particular damage as a result of your breaching the contract. It’s just bad practice, and, if you get your old agent offside, they may be less inclined to help you with the transition to the new agent: for example, they may drag their heels in passing on any information about, say, whether or where they’ve submitted your previous manuscripts. (Legally, they are required to give you this information, but they may not prioritize it or do it quickly, if they are annoyed with you! I’m not at all condoning this practice—just sayin’ . . . )

It’s also a good idea to be upfront when querying new agents about whether or when you’ve been represented before, but there’s no reason (or legal need) to go into all the gory details. You can simply say, “I’ve been previously represented, but am seeking new representation,” or something along those lines. If a new agent offers you representation and is curious about your past dealings with other agents, you can always chat about it then if it’s at all relevant to the new agent’s plan for your work.

Of course it’s important for the new agent to understand whether there are any live publishing contracts brokered by the past agent, particularly those on which the past agent is still earning commissions. Check back to my previous post about that. A new agent technically should not get involved in any deals that are still effectively the business of the old agent, unless the two agents make a separate agreement about it. Additionally, as I suggested above, a new agent may want to know about work that the old agent has sent out on submission to publishers and hasn’t sold, because the new agent will want to avoid sending the same manuscript to the same publishers.

Other than that, there’s not much else to worry about. The main things to understand are that you really do need to formally end your relationship with the existing agent before pursuing a new agent. Your existing agency arrangement may require you to do this, and agents generally consider it ethical practice not to take a client who is technically represented by someone else. This can involve difficult conversations with an existing agent about why you want to leave them and, of course, leaves you at the risk of having no representation (at least until you secure a new agent). You need to make the business decision about whether no agent is preferable to an agent you’re not happy with, and, also, whether a conversation with that agent may help improve the situation or whether you really need to move on. Those are all personal business decisions for you to make, but, remember that your agent is just that: your agent. She’s there to sell your work. If that relationship isn’t working out, maybe it is time to move on, but, if so, make sure you do so professionally and ethically. It happens all the time, but it makes a better impression if you handle everything properly.

And my usual disclaimers apply to this column. Nothing here is intended as formal legal advice. If you need specific advice on a particular matter, you should consult an attorney.

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