Trust and Advice
Forthcoming, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding, eds.) (Cambridge University Press)
23 Pages Posted: 2 Oct 2019
Date Written: September 21, 2019
Trust matters to fiduciary law in a variety of ways. This chapter focuses on the importance of trust in advisory relationships, and it emphasizes two settings: categorical fiduciary relationships and ad hoc fiduciary relationships. In the categorical setting, these relationships may be appropriately treated as fiduciary in part due to the likelihood of a beneficiary’s epistemic dependence on a fiduciary’s judgements. In turn, the presence of trust supports the likelihood of that epistemic dependence. In the ad hoc fiduciary setting, advisory relationships are sometimes best seen as a kind of “involvement” (as that concept is developed in David Owens’s work). Involvements are voluntary relationships even though they may have no precise moment when they come into existence. Importantly, the existence of involvements is generally recognizable by the parties involved. Trust is relevant here as an aid in legally identifying such relationships.
Keywords: Fiduciary, trust, involvement, advisory, discretion, opportunism, voluntary
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