Fiduciaries and friends

I happened to notice a post by Ethan Lieb over at Prawfsblog asking about canonical articles on fiduciary relationships. I'll try to dig some stuff out of my files - it used to arise partly from my business associations stuff, but in fact much more relevantly in my nonprofit law work. However, I myself am much more interested in how Professor Lieb develops a theory of friendship which, as he says, is really the driver in his theorizing about fiduciary as contrasted with, say, Larry Ribstein's contractual account of fiduciary.

For what it's worth, it seems to me that a theory of friendship that accounts for fiduciary relationships has to deal with the question of social and moral hierarchy. By that I mean that friendship is a social relationship that presupposes a certain equality between the friends. It is a relationship in which, if two people are not ordinarily of equal rank in society - in, for example, a hierarchical aristocratic society - they in effect agree to set aside those differences for the sake of friendship. We tend to overlook the hierarchical virtues in our egalitatarian way of looking at the world under conditions of modernity - but certain virtues require a certain social relationship that is not egalitarian for their exercise, such as forgiveness and mercy (there were a couple of decent analytic philosophy books on those topics a number of years ago, I recall). You can't be merciful to someone who, in that moment, is entirely your equal; you cannot forgive someone who does not stand in a certain social relationship with you of having wronged you - and these are not relations, at least in that moment, of social or moral equality.

If, as I suggested above, friendship is a relationship of equality, I wonder how a fiduciary relationship would be characterized? As a relationship of equality? It might start out that way, but doesn't the creation of a fiduciary relationship introduce a certain inequality into the relationship? Isn't that more or less what master and servant, agent and principal means? Seen that way, doesn't Professor Ribstein's account seek to find a way to make a very ancient, but inegalitarian, social and legal relationship, fiduciary, compatible with modernity's requirement that, even if in a given moment, one person subjects himself to another, it be done as a matter of choice, hence as a matter of contractual choice?

(The question of hierarchical virtues came up for me a few years ago in a very odd context, when I was asked to write an essay for the LA Times book review on the pornographic classic, Story of O, on the occasion of the death of its pseudonymous author. I believe I might have been the very first person in a long time to have read the non-pornographic parts of the novel, and I discovered, much to my surprise, that the whole book is one long essay on eroticized virtues of hierarchy. I've never had the nerve to post it to SSRN (it occasioned many nasty letters to the editor, as well a number of quite indecent proposals) but anyway you can find the essay, The Erotics of Virtue, here in pdf (it's not that long, but the pdf takes forever to download).)