Red Flag Warnings: How to Spot a Shady Literary Agent

It’s better to have no agent than a bad agent.

Spend any time in author spaces and you will hear this time and time again. For writers and novelists who are seeking agent representation but are stuck in querying hell, it may start to grate on the nerves.

It seems easy for an agented author to say, but how can writers new to the business even tell a bad agent from a good agent? How can you know who to trust in this business?

This article provides tips for spotting unscrupulous and predatory “schmagents” or fraudsters with more red flags than a Love Is Blind beach party episode, along with some thoughts on literary agency best practices and green lights.

Disclaimer: While I am an attorney as well as an author, I don’t practice contract or media law, so I don’t have subject matter expertise on the ins and outs of publishing contracts.

This post is intended as educational information, not legal advice. It’s based more on my observations of the publishing industry and experience as an a represented author than my legal experience, so take it for what that’s worth. There are attorneys who do this for a living who likely have more insight.

Keep your ear to the ground.

Your first, best resource for information about agencies and agents is your fellow authors. Yes, there is a back-channel whisper network where we share information about known bad actors in private. It’s real and it serves the tea steaming hot.

This isn’t because we are hiding it from other authors or being cliquey. It’s not a secret club with a secret handshake. In fact, all my author group chats and writing servers exchange this kind of information.

We depend on our whisper networks because most authors feel wary about making this type of information public, fearing professional or legal consequences. Publishing is a densely networked small world, and making public claims can risk one’s reputation. Libel lawsuits can be a real concern in this business, so if you do go public, make sure you have the receipts.

Look before you leap.

Before you start querying, before you have a call or an offer in hand, do your best to gain a baseline of knowledge about the agents and agencies you’re entrusting with your work.

Remember, anyone can hold themselves out as an agent. There is no professional exam or licensing and no prerequisite experience or education required to call yourself one. There is a professional organization with a code of ethics, the Association of American Literary Agents, but agents are not required to belong to it. This makes vetting all the more important.

Here is a non-exhaustive list of things to look for as you research agents and agencies.

• Qualifications such as agency longevity and agent experience — have they been in business long? New agencies aren’t necessarily suspect if the lead agents have significant publishing-side industry experience (not just as an author).
• Author feedback can sometimes be found online through Query Tracker comments and the Absolute Write forums.
• Number and quality of book deals — this is where a Publisher’s Marketplace subscription, while pricey, can be invaluable. For example, some agents may primarily rep deals with publishers who accept year-round non-agented submissions. Those agents may not be able to offer you value above and beyond what you can do for yourself.
• Mentions on Writer Beware, a site founded “to track, expose, and raise awareness of questionable, illicit, and/or nonstandard practices in and around the publishing industry.” Check out their comprehensive article on literary agents.
• Non-standard fees such as fees for reading, evaluation, retainer, marketing, or submission.
• Potential conflicts of interest such as running a publishing company and agenting at the same time. This could mean they funnel submissions directly to their small press rather than submitting widely. Some legitimate agents are also professional editors, but they should keep their businesses separate and shouldn’t sell editing services to agency clients.
• Signing many clients quickly or in large batches, which could indicate poor mentorship or ineffective supervision of junior agents.
• Social media behavior. Some agents will outright tell you who they are, and you should believe them. For instance, some agents subtweet querying authors in a mocking way. Others have publicly boasted about preferring not to give their clients positive feedback on their work. It’s up to you to decide what you consider a red flag as far as social media presence, but in general, don’t expect someone to act better in private than they do in public.

Writer Beware has more questionable practices listed on its website. Also check out Victoria Strauss’s blog for recent news and case studies.

Query list research isn’t quick and easy. It can’t completely protect you from shady situations. But it can save you a lot of time and heartache in the long run.

I can attest to this from personal experience. In my first year of querying, I fired off my pitch to an agency with a questionable reputation, “just to see what would happen.” I thought it wouldn’t matter because they wouldn’t look at it anyway.

Guess what? They did. They requested a call, and though I turned it down, I spent the next (un-agented) year wondering if I had made a mistake. In fact, I had, but the mistake wasn’t saying no. It was undervaluing my own work at the outset of my querying journey.

You are the talent!

It’s so easy for authors to feel that agents have all the power and authors have none. And don’t get me wrong, there is a real power dynamic here.

Whether they like the role or not, agents act as industry gatekeepers. Authors need an agent to get access to most mid-sized and Big Four publishing houses. Because of this, authors tend to underestimate the power they do have.

Agents and editors need us. Authors are the talent. We produce the content this business runs on. Without us, there would be no books.

When you’re negotiating an offer, don’t forget what you’re bringing to the table: your hard work, your skills, your passion, and your creative voice. Come ready to walk away if something doesn’t feel right or if you’re not treated with respect.

If your work had no value, you wouldn’t be at the negotiating table. (This should go without saying but this doesn’t mean that an un-agented writer or work lacks value. I am not affirming the consequent here!)

Don’t be afraid to ask questions and get clarification on anything you don’t understand. Good faith negotiations require everyone to fully comprehend the terms of the agreement. Vague terms or evasive answers are in themselves a red flag.

The call is a job interview — for the agent.

Red flags can crop up as soon as an agent expresses interest in your work. For instance, some agents might request unusual information pre-call, such as a detailed marketing or career plan. This would give me pause because it suggests the author must prove their worth to the agent rather than the other way around.

On the call, you are interviewing the agent to find out if they will be a good fit to represent your interests in the publishing industry. They should be ready to prove themselves to you. You are not going to work for them. They want to work for you and take a share of your earnings.

A good agent will answer your questions during a call directly without evasions. They should demonstrate reasonable familiarity with and enthusiasm for your work — I’ve also heard horror stories of agents who offered before reading and then dropped their clients later. They should not devalue your work or make statements that imply they are your only hope of gaining representation.

Take your time before you sign.

Once you do have an offer on the table, know your rights. If an agent pressures you to accept their offer quickly, without allowing time to nudge on other outstanding queries, that’s a big red flag. This has happened more often lately, with a notable instance of an agent setting their deadline for acceptance at just 48 hours from the offer.

That’s far too short a time period for any other agent to read your work and consider making an offer. It’s a blatant ploy to limit your options. No matter how “big name” the agent, this kind of high-pressure tactic is unethical.

The industry standard waiting period for acceptance post-offer is two weeks. During those two weeks, authors can and should reach out to agents who have their outstanding queries to give those agents an opportunity to offer as well. In fact, I asked for three weeks to decide because the standard two-week period encompassed a major holiday. It wasn’t a problem.

You can also ask to extend the waiting period if, for instance, another agent has asked you for more time to read. I had that happen too. I chose not to extend time, but I have no doubt that had I asked for it, I would have gotten it. Feeling safe asking for what you need is a green light!

The agent-client relationship is like any other relationship in this way. The way they treat you at the outset is probably the nicest they’ll ever treat you.

After all, before you sign with them, they’re still hoping to get the job. They’ll be on their best behavior. If their best behavior includes pressure, bad boundaries, entitlement, or “ negging “ behavior, RUN.

Review your contract carefully.

Your contract is almost always technically with the agency, not the agent. This is true even if the agent is empowered to sign on behalf of the agency, as is often the case. The agency contract will likely specify what happens if your agent quits or switches agencies. If it doesn’t, or if it does but you don’t understand it, ASK.

Ideally, ask about this on the initial call with your agent. You can even ask to see a standard agency contract prior to accepting an offer. Not all agents will provide it, but it doesn’t hurt to ask. In my opinion, it should be industry best practice for agents to share it.

An agency doesn’t have to take on clients of an agent who quits the business or moves on, but again, I’d call it a professional best practice. When my agent switched agencies, I had a choice to go with her or seek rep with an agent at the same agency. I was not pressured to choose one or the other.

For more on scenarios where an agent leaves their agency, please see this excellent newsletter by Kate McKean, which helped inform this post.

First and foremost, your agency agreement will tell you what happens if your agent leaves their agency, but it doesn’t come right out and say that. I mean, if you read it carefully, you’ll get it, but there isn’t usually a clause that says THIS IS WHAT HAPPENS IF YOUR AGENT GETS ANOTHER JOB.

Kate McKean, “What Happens When Your Agent Quits?”

Make sure you know whether your agent is representing all of your work or just one book. Keep in mind that if your book sells before you switch agencies, your former agent/agency will still be the Agent of Record and will retain commission rights on unpaid advances or royalties. Also, if you are on submission and then switch agents or agencies, that manuscript should not be resubmitted to editors who have already seen it.

For more on what to expect from an agency contract, check out this article from the Author’s Guild.

Know your rights and your risks.

You have the right to take your contract to an attorney or other trusted person before you sign it. You have the right to seek advice from other professionals at any point. You have the right to ask for changes to the terms. You have the right not to sign the contract for any reason or for no reason at all.

Don’t assume you are represented until everyone’s signature is on the contract. That means you, your agent, and sometimes a senior agent or the agency owner.

If there is an unexplained delay, ask why. Be polite but be firm. You have the right to informed consent and the right to pull the plug at any time if things get shady.

If your contract isn’t formalized within a reasonable time, that’s a big red flag. If it isn’t inked after a few months, that’s a whole carillon of warning bells. I have signed two agency contracts and both were formalized within 24 hours. When the contract required a third signatory, my agent sent the contract to the senior agent within hours of signing it herself.

Look for green lights, too.

Despite all of the above, that the majority of agents are not out to screw you. Some of them are more experienced, more savvy, and more mature than others, but most of them are in the business for the right reasons. To flip the script and end this litany of warnings on a positive note, a good agent will:

• Communicate important information clearly and timely, then clarify if necessary or requested
• Set and respect good boundaries
• Support clients’ control over their creative product and career decisions
• Act as a responsible fiduciary toward client work and earnings, i.e. put the client’s interests first
• Respond with reasonable swiftness and good will to client questions
• Provide regular updates when appropriate or as agreed upon
• Agree to reasonable accommodations for disabilities or other individual needs
• Accept feedback, acknowledge any lapses or errors, and take personal responsibility
• Be honest about their limitations and expectations
• Treat you as a fellow professional and business partner
• Follow up on pending deals or opportunities
• Bring value, connections, and experience to the table
• Share information, negative or positive, that is relevant to clients’ career decisions, e.g. submission lists of editors to whom they have sent your manuscript.

Note that a good client will respond in kind and hold up their side of the partnership. As a client, of course, your role isn’t exactly the same as the agent’s fiduciary duty. When it comes to honest communication, boundaries, personal accountability, and respectful behavior, however, these are all hallmarks of professionalism and healthy relationship skills.

Don’t blame yourself for other people’s misbehavior.

The availability of this information does not place the onus on authors if they find themselves in a toxic professional relationship, believe what a dishonest agent told them, or sign a contract under pressure.

There is a power differential between author and agent, especially when the author is new to the business of publishing. If an agent or agency is acting in bad faith, by definition they’re exploiting your lack of industry knowledge, your trust, and their position of authority. That isn’t on you. It’s entirely on them.

Unfortunately, even if you do inform yourself to the best of your abilities, you could still encounter unethical behavior in the publishing industry, as with all industries. Hopefully, this article has armed you with some information that will help protect you from known bad actors, or at least given you a place to start.

Good luck and be safe out there!

Erin Fulmer is a fantasy and science fiction author, attorney, and blogger. She lives in Northern California with her husband and two spoiled cats.

This article was abridged from an original piece originally published at http://erinfulmer.com on February 28, 2022.

Red Flag Warnings: How to Spot a Shady Literary Agent was originally published in The Writing Cooperative on Medium, where people are continuing the conversation by highlighting and responding to this story.