Agency Publishing and Conflict of Interest

Bows and flows of angel hair and ice cream castles in the air. And feather canyons everywhere.

For those of you old enough to remember this song, you’re welcome for the ear worm. You know, aren’t we due for a really good cover of Both Sides Now? Someone should really get on that.

So, it’s been an interesting week in the publishing world, vis a vis agents and electronic publishing.

On Monday, much-sought agent Jessica Faust announced on the Bookends, LLC blog, that the literary agency would be developing an epublishing arm. At the time I’m writing this, there are 152 comments on the post. See, they’re not the first agency to announce that they’re partnering with their authors to assist them with self-publishing their backlists. Bookends, however, is taking this one step farther and plans to establish an entire epublishing arm, which would involve them screening submissions, editing books, electronically publishing them and marketing. For this, Bookends would receive an unspecified split of the revenue.

This is a huge move, from agenting to publishing.

Yesterday, Courtney Milan, romance author and lawyer, posted an excellent breakdown of the situation in An Open Letter to Agents. Now, she does not specifically address any agency in particular – I’m the one drawing this correlation. Courtney lays out the situation in a clear and logical way. She promises a second part today, which I’m interested to see.

What it comes down to for me is Conflict of Interest (COI). Now – full disclosure – COI is a fairly large part of my day to day considerations. I work for a private environmental consulting firm, funded largely by government contracts, primarily EPA. We have meetings about COI fairly often, because we owe it to our clients to do so.

For example (and you can totally skip this part if it’s too boring), a company that analyzes water samples contacted us. They’ve developed a database system for wastewater plants that processes the results of their water tests, compares the data to EPA’s regulations and tells the plant operator where they are in compliance with the law. This company would like to develop something similar for drinking water. They came to us, because we’re the drinking water experts. All fabulous, right?

Well, no. Because one of the things we do for EPA is assess water system data and their determinations about whether they are in compliance with the law. I’m essentially an auditor. So, if I were to help design a program to determine compliance, while I’m also assessing how well a system using that program does it, then I have the appearance of a COI. Because I could skew the results in my favor.

Now, I would never do that. I’m an objective scientist with strong personal and professional ethics. None of that matters – our company could lose multi-million dollar contracts if there’s any chance of COI. Because my client, EPA, awarded me this contract to be their agent and no one else’s.

We had several meetings on this issue and eventually decided any role we’d play would have to be one step back. I can explain the federal regulations and the nitty-gritty of compliance to the program developers, but how they set it up is up to them.

So, let’s look at a literary agent publishing her clients’ work. A writer engages a literary agent to represent her work to publishers. The agent has the contacts, the sales experience and the business savvy to get her client the very best possible deal. The agent represents the writers’ interests.

If the agent becomes a publisher, she now has an interest on the other side of the fence. To my mind, this is more than even just the appearance of COI. Arguably, agents who are also writers have this same conflict. Breezily declaring that, oh they have no COI and, besides, they have integrity simply means nothing at all.

In fact, that some agents fob off COI as irrelevant says to me that they haven’t seriously considered the issue.

I’d believe that. It might be that you only really think about these things when you have to go through three meetings investigating all the possible COI ripples for each new project, that it becomes a serious consideration.

The thing is, it’s only a consideration for them if it becomes a problem in their contract with their clients: the authors. Just like I would be in trouble if I violated my contract with my client, EPA, an agent would be in trouble for violating the terms of their contract with their client, the author, only if the author came down on them. Now, EPA and the federal contracts office can come down on us like Armageddon. Will an author come down on her agent in the same way?

I think we all know the answer to that.

I venture that this is why literary agents aren’t terribly concerned about COI. There’s really no reason for them to be. The only people hurt by any COI on their part is the writers.

It remains to be seen whether we’ll do anything about it.