The two most significant changes are to Clause 5, with members now prohibited from participating in packaging fees on clients’ TV and film deals, and from accepting producer fees without clients’ written permission; and to Clause 8, which now permits members to provide paid editing services (formerly, members were prohibited from providing such services).
It’s Clause 8 I’m going to focus on in this post.
Why does it present an ethical dilemma for an agent to also offer paid editing services? Because it’s a potential conflict of interest. The author who approaches an agent for representation, and instead receives a recommendation to buy editing services, can never know whether the recommendation is being made for their benefit or for the agent’s. Plus, if the author then becomes a client, the agent will potentially have made a profit on top of any commissions from sales (and having already made a profit, how invested will the agent be in finding the best possible deal for the author’s work?).
And indeed, there is and has been plenty of abuse of agent-offered editing–from agencies that attempt monetize rejections by encouraging the use of agency-owned editing services (such as Langtons International Agency), to agencies that earn kickbacks for steering writers into the clutches of editing scams (like Edit Ink, which had kickback agreements with dozens of agencies), to agencies that are mere fronts for paid editing (a couple of examples from Writer Beware’s files: The Robins Agency and the M.W. Mills Literary Agency),
As mentioned above, the former AAR imposed a blanket prohibition on paid editing for members. Here’s the relevant language from the old Canon:
…members may not charge clients or potential clients a fee for reading and evaluating literary works and may not benefit, directly or indirectly, from the charging for such services by any other person or entity. For the purposes of the foregoing, the term “reading and evaluating literary works” includes providing editorial services with respect to such works.
Times change, though. Increasingly, reputable agents looking to expand their income and offerings have moved toward providing paid adjunct services, such as editing, in addition to their core activity of representing manuscripts and selling rights. Ideally, these services come with self-imposed guidelines: agency clients are never offered the paid services, and paid service clients are not eligible for representation. But not always. Plus, agents who ethically offer paid editing and want to join the AALA have not been able to do so.
The AALA’s revision of Clause 8 of the Canon of Ethics both acknowledges the changes in the industry, and addresses their ethical implications, by allowing member agents to offer paid editing services–but within strict ethical parameters.
Here’s the relevant language of the new clause 8.
8. A) The Association believes that the practice of literary agents charging clients or potential clients for reading and evaluating literary works (including query letters, outlines, proposals, and partial or complete manuscripts) is subject to serious abuse that reflects adversely on our profession. Members should be primarily engaged in selling or supporting the of selling of rights and services on behalf of their clients, i.e. members should not be primarily pursing freelance editorial work and misrepresenting themselves as literary agents or support staff of a literary agency. Members may not charge any reading fees for evaluating work for possible representation. However, members may provide editorial services in exchange for a fee to authors who are not clients, provided members adhere to the following provisions:
I) Members who render such services must make clear to the author in writing in advance that the rendering of such services does not indicate or imply that the member will represent the author as a literary agent and must provide to the author at the outset a copy of this Paragraph (8A-8B) of the AALA Canon of Ethics; and
II) if during or after the rendering of such services the member agrees to represent the author, the member must then return in full all payments received for such services prior to submitting the work and waive any further payments for such services for that author; and
III) to help prevent confusion, abuse, and to further separate paid editorial services from literary representation, at no time may members respond to an author who approaches them only for literary representation by instead suggesting or directing the author to pay for editorial services by the member or by anyone else financially associated with the member or member’s agency. Members must provide paid editorial services only to authors who have approached them directly for such services.
B) Literary representation of any author must not be contingent upon the author engaging any such paid editorial services, nor shall a member retroactively charge for editorial services in the event a client’s project is not sold. For avoidance of doubt, the intent of this clause is to allow members flexibility and independence in their payment structures while avoiding the conflict of interest that may arise from members making a profit on top of commission from the sale of both their client’s works and separate paid services rendered to that client.
So, in a nutshell, members who offer paid editing must inform editing clients that the editing services won’t necessarily lead to representation; cannot make editing a condition of representation; must reimburse all fees if the editing client then becomes an agency client; and can ONLY offer paid editing to writers who approach them for that specific purpose. In other words, the agent can’t invite submissions from writers who query for representation, and then turn around and offer editing services. (There’s a helpful flow chart to illustrate how it all works–scroll down to the bottom of the page).
These are excellent, practical changes that address not just bait-and-switch operations, where the agency is really just a front for editing or a kickback factory like the agencies that worked with Edit Ink, but less overtly scammy but equally ethically questionable situations in which agents use editing recommendations to monetize rejections, or attempt to increase their editing client base by asking for submissions even where queries don’t interest them. I think it’s a good balance between acknowledging how much the profession of agenting has changed, and confronting the ethical issues–not to mention the outright scams–that never seem to go away.
Those ethical issues aren’t just theoretical, by the way. For instance, I’ve recently received several complaints about an agent with what appears to be a reputable agency who is offering various paid editing services to writers who query for representation (there is no mention of paid editing on the agency website). This agent, who isn’t an AALA member, is justifying the offers by claiming that this is a “new way” agents are working, and providing an unapproved early version of revised Clause 8 (which lacks item III) to imply that the AALA now approves of paid editing in any and all situations.
Now that the revised Canon has been published, that kind of misrepresentation should get a little harder.