by Matthew Swihart, Esq.
Is your agent a felon? She or he very well could be, and not even know it. I’m not talking about your typical felonies—rape, murder, drug dealing, bad check writing, and the like—rather, I’m talking about something that can potentially lead to a felony charge: Unlicensed Practice of Law (UPL).
You see, each profession requiring state licensure has carved out a specific section of actions and statements for themselves, and prohibited non-members from doing things they like to do. For example, the State frowns upon people without medical degrees performing surgeries, people without architectural degrees drawing up plans for very tall buildings, and people without law degrees from giving legal advice. The rationale is self-explanatory: to protect the public from those well-intentioned self-help people who don’t have proper training and certification.
Now, the legislature felt a degree of any type was pretty much worthless, so they also instituted licensing bodies. For lawyers, it’s the Bar of each state. This is always an office of the state Supreme Court, and since they don’t trust law schools to teach us anything, they require a passing grade on their Bar Exam in order to become licensed to dispense legal advice in their state. Some states will let you waive the exam if you have practiced in another state for a period of time, others won’t.
If someone practices law in a state without being duly licensed by that state (or licensed in a state, if they are practicing federal law), then they are subject to a civil injunction prohibiting them from practicing law in that state again. If they violate the civil injunction, they can be held in contempt of court. Depending on the jurisdiction, this could lead to a fine or even imprisonment (in some jurisdictions, contempt of court is a felony, hence the title of this post).
This is all good and well, but how does it relate to agents? Remember, we were talking about agents?
It is my opinion that the vast majority of agents (of all types, not just literary) routinely practice law as part of their profession. Real estate agents will explain provisions of the various contracts involved in the purchase and sale of homes. Literary agents will explain the provisions of various contracts involved in selling and marketing your books. You expect them to. After all, what are you paying them for, if not to give you advice about the contract they are negotiating for you?
But it is dangerous for an agent to practice law, as the repercussions of bad advice can be devastating to an author. For example, in a business contract (so we don’t offend any authors or agents, we’ll use an example outside of the publishing world), the phrase “time is of the essence” may imply the other side merely wants to move quickly to complete the deal/perform the task contracted for. While true, this phrase also has an additional legal meaning: that time is a material element of the contract. This means a portion of the goods or services not delivered or completed on the date listed may be a material breach of the contract, entitling the non-breaching party to liquidated damages—even if the delivery/completion was only late by a single day.
Of course, that is why there are copyright and contract attorneys out there. There are even agents who are also attorneys—people like Marisa Corvisiero (https://www.facebook.com/nyagent)—a fantastic combination, as it’s the only true one-stop-shopping for an author.
These people provide the valuable legal advice which an agent alone is not qualified or ethically able to provide. Even if an agent works with a publisher regularly, and the contract hasn’t changed in years, the simple fact is the law changes almost daily. A provision frequently relied upon by an agent (and publisher) may have recently been deemed invalid by a court, and the agent would have no way of knowing that information. This could lead to problems for the author who relied upon their agent’s advice. Problems for authors lead to lawsuits against agents.
The best agents know this, and routinely refer their clients to contract attorneys to review the contracts before they are signed.
So, how do you know if an agent is practicing law? When deciding whether something is the practice of law, consider this: if the person giving you advice begins with the statement, “Now, I’m not a lawyer, but…” or, “Now, I’m not giving you legal advice, but…”, then everything after the “but” is legal advice. In other words, if you feel like you want someone to explain a contract provision to you, then you probably should have an attorney look at it.
The best description I’ve seen is from a Florida case from 1962, which held, “… if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.” The Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla. 1962), vacated on other grounds, 373 U.S. 379 (1963). Bear in mind, the purpose of UPL and other rules are to protect the public from incompetent, unethical, and irresponsible representation.
If you have any questions related to this or other topics, or if you have a topic you’d like me to address in this forum, please leave them in the comments, or e-mail me at Matthew.Swihart@aol.com. One caveat: unless you sign a representation agreement with me, nothing on here or in any e-mail response constitutes an attorney-client relationship.