Directly representing both sides of a negotiation is an area where the conflict cannot be waived, to my knowledge, even with full disclosure. Ethics rules recognize that it’s one thing to waive a theoretical conflict (e.g., when a colleague in a law firm represented the opposing party on an unrelated case years ago, but the current attorney in the law firm had no involvement in that case and does not have access to the old files, and both parties are amenable to the representation), and quite another to waive a current, blatant conflict.

There’s also a concept called “appearance of impropriety” that would apply here. Even if the dealings are entirely above-board in the circumstances (which I have no reason to doubt), they are so fraught with temptation that there’s an appearance of impropriety, which has to be prohibited.

It also strikes me that some people aren’t seeing how bad this is because it’s “just epublishing.” I’m not, personally, a believer in the theory that epublishing will take over the world in the near future, but I do think a lot of people are selling it short, including, ironically, many people who are entering the epublishing business.

It seems pretty clear to me that if a major publisher were to merge with a major literary agency, absolutely no one would consider it defensible. Why would anyone think that of course the mega-publisher/agency would send manuscripts it covets to its competition, rather than making a pitiful offer to the author?

The underlying assumption is that epublishing is small potatoes and will never earn much money, so it can’t possibly offer enough temptation to the agent/publisher to skip sending manuscripts to better-paying places.

That may be true today, but it creates a slippery slope — when will the money earned from ebooks become enough to create enough temptation to steer a client there instead of to a major paper publisher first? Will the conflict suddenly become serious then? So it will be okay for an agent to own a minimal-income an epublisher, but not a big-income publisher?

It’s just wrong.

Please note that while I am an attorney, I am not giving individual legal advice, just presenting general information

I want my agent to fight like a mad dog if it comes down to it for me…and if she’s got in an interest in a company (the publisher), well…I’m always going to wonder if she’s doing that. It would be a dealbreaker for me as well.

Thank you for speaking out.

I hope the Waxman agency finds a way to separate the Agency from the Publisher — but it’s hard to see how that can happen.

I agree that ultimately the decision rests with the write. In which case, full disclosure of the conflict of interest should be sufficient to ensure it’s not a problem. But I don’t buy that, because writers pay agents to be experts. The full disclosure solution only works if the writer feels confident to make the decision totally independently of ANY of the agent’s advice. Because the advice could be inadvertently and unintentionally coloured.

I’m with Courtney on this, I wouldn’t be very happy with it.

Thanks for the comment. I agree that sometimes ethical issues can be solved by full disclosure and consent. A few points, however.

1. The disclosure has to be full. That is: the agent needs to do more than say “I also get money on the publishing end of things.” The agent needs to provide the client with a full disclaimer of not only the potential conflict, but the potential effects, something like: “Our interests are adverse, and while I normally will be 100% in your court, as to this transaction, I am not.”

2. The consent needs to be real and not even slightly coerced. That is: the client must have the option to say, “I never want to talk to you about this publishing option again,” and the agent has to be okay with that.

3. Even then, as Melissa points out, I do not think this alleviates the conflict of interest itself. All it does is make the decision an informed decision on the part of the client. But it doesn’t alleviate the temptation for the agent to engage in self-dealing–and that’s where things get problematic.

There are some conflicts of interest that can potentially be cured with disclosure and consent. I am not sure this is one of them.

As a note, the AAR’s statement quoted above is not quite categorical. They do have one exception to the self-dealing provision (where disclosure plus consent, which includes the ability for the client to get another agent to represent them on a transaction) is considered okay:

The one exception is the so-called “packaging fee” paid to acquire television rights. A member may accept or participate in such a fee if the member, at the earliest possible time, completes these four steps:
1. Fully discloses to the client who owns or controls the property the possibility that the member may be offered such a fee.
2. Notifies the client that such a fee is in lieu of any fees from the client with respect to the transaction.
3. Delivers to the client a copy of this Association statement on packaging and packaging fees.
4. Offers the client the opportunity to arrange for other representation in the transaction.

Note that this is ONE exception–the AAR has not made any other exceptions to the rule, and I suspect they did so because they didn’t think that disclosure + consent would be sufficient to cure the problem.

The problem with conflict of interest is that, disclosed or not, it imposes on decisions made. We may not realize the weight it carries, but the balance shifts and colors reasoning.

I know I don’t want this kind of blurring of boundaries coming into play with my career and will make my representation choices accordingly.

I knew what you were saying. I just was disagreeing. (lol) Definitely it would be a very big problem if the information isn’t disclosed, but the very nature of COI lies in a potential bias of one party’s decision making. Agent can get huge deal with publisher A, which will both of their pockets. Or Agent can send book to own publisher and reap all the benefits. Will the author always be certain the agent chooses the one that’s in the author’s best interest? Will the agent always know the choice they made were in the author’s best interest?

I don’t think you can say one way or the other, which is the problem for me i.e. the problem doesn’t go away with the discloser of information.

When they are disclosed you can make a informed decision. The decision might well be to get a different agent or not to submit your work to certain agents. Or you might decide to make use of their services regardless.

When it comes to getting a agent, it is very much a buyers market. Some authors might prefer having a conflicted agent to not having an agent at all.

Which ever decision is made by the parties involved, as long as all conflicts of interest are disclosed, there should not be a problem.