Diamond v. Davis

FERREN, Associate Judge,

concurring in the result and dissenting in part:

I concur in the judgment to affirm but dissent from the majority’s formulation of the standard of notice that applies in a case of fraudulent concealment. The majority applies the traditional discovery rule in which the statute of limitations begins to run when the plaintiff has “inquiry notice” of the claim. I believe that when there is fraudulent concealment, as in this case, a higher standard of notice, called “heightened notice,” is required before the statute begins to run. This higher standard is necessary to compensate for the fraud that masks the claim. Even applying this higher standard, however, I conclude that plaintiff-appellant, Patrick H. Diamond, had the required heightened notice more than three years before he filed suit, and that his claim is accordingly time barred.

I.

Taking the record in the light most favorable to Diamond, I proceed from the premise that Diamond’s attorneys in his tax fraud prosecution, appellees Carle E. Davis, Esq. and his law firm, McGuire, Woods, Battle & Boothe (“McGuire, Woods”), fraudulently concealed from Diamond — by failing to disclose — the firm’s lawyer-client relationship with Reynolds Metals Co., which Diamond had sued for an alleged RICO violation. See 18 U.S.C. §§ 1961-1968 (1988). The question, then, applying the “discovery rule” used by the majority, is whether, despite fraudulent concealment, Diamond was on “inquiry *385 notice” of his claims (all of which arose from the facts describing the alleged conspiracy) more than three years before he filed suit in September 1989. Specifically — according to the majority’s formulation — because “the plaintiff has a duty to investigate matters affecting her [or his] affairs with reasonable diligence under all of the circumstances,” did Diamond actually know, or, if he had exercised reasonable diligence would he have known, “of some injury, its cause-in-fact, and some evidence of wrongdoing” before the three-year statute of limitations expired? Ante at 381.

The conspiracy is premised on four sets of facts which, as I would summarize them, allegedly give rise to an inference of culpability:

1. Judge Robert H. Merhige had a close personal relationship with the family of J. Sargeant Reynolds, the family that founded and, under the leadership of David P. Reynolds, continues to head Reynolds Metals Co.

2. Davis and McGuire, Woods knew about the Merhige/Reynolds family relationship.

3. Davis, as attorney for the J. Sargeant Reynolds estate, had a relationship with Judge Merhige, who was an executor of that estate.

4. Davis and McGuire, Woods had a substantial connection with Reynolds Metals Co., as evidenced by the fact that Reynolds Metals was a firm client.

According to Diamond, the foregoing facts, buttressed by evidence proffered as to each, permit a reasonable inference that Davis and McGuire, Woods conspired with members of the Reynolds family and with Judge Merhige to sell out the firm’s client, Diamond, by obtaining Diamond’s conviction at his bench trial for tax fraud before Judge Merhige (which the firm facilitated by advising Diamond to waive a jury), in order to besmirch Diamond’s credibility and thereby help Reynolds Metals prevail in Diamond’s — now a felon’s — RICO lawsuit against that company.

Diamond does not effectively deny that he was aware more than three years before he filed suit (in September 1989) of the first set of facts shaping the alleged conspiracy. In particular, as to the Merhige/Reynolds relationship, Diamond wrote a letter on October 7, 1985, to his attorney in the RICO litigation, Harold Kohn, Esq., that he was concerned about Judge Merhige’s bias against him fueled by “Reynolds,” implying knowledge of a relationship between the judge and the Reynolds family. Diamond’s knowledge was made unquestionably clear several months later in a letter of March 21, 1986 to attorney Kohn and his partner, William Prickett, Esq., in which Diamond wrote that Judge Merhige had been a friend of J. Sar-geant Reynolds and was an executor of J. Sargeant Reynolds’ estate.

Nor does Diamond seriously contest his awareness, more than three years before he filed suit, of the second and third sets of facts critical to the alleged conspiracy: Davis’s, and thus McGuire, Woods’, knowledge of the Merhige/Reynolds family relationship, and Davis’s relationship with Merhige. In Diamond’s March 21, 1986 letter to attorneys Kohn and Prickett, he enclosed a copy of a receipt for payment of an inheritance tax installment showing that the address of the estate — of which Judge Merhige was an executor — was Mr. Richard S. Reynolds, Jr. c/o Carle E. Davis, Esq., a McGuire, Woods partner (and Diamond’s lawyer). Other documents accompanying this letter show that the Reynolds estate, handled in part by Judge Merhige, paid legal fees to McGuire, Woods.

Accordingly, the only link in the alleged conspiracy that Diamond emphatically contends he was not aware of more than three years before he filed suit was Davis’s and McGuire, Woods’ connection with Reynolds Metals, a defendant in Diamond’s Delaware RICO lawsuit. Diamond claims he did not know about this relationship until November 1986 (fewer than three years before he filed suit), when he discovered from an SEC filing that McGuire, Woods was representing Reynolds Metals in its takeover of Robert-shaw. 1 In a nutshell, Diamond contends that *386 McGuire, Woods — in particular Carle E. Davis, Esq., Diamond’s attorney in the tax fraud case — had fraudulently concealed from him the McGuire, Woods/Reynolds Metals connection by failing to honor the fiduciary obligation to disclose that relationship to Diamond.

I conclude that the record strongly, if not conclusively, suggests that Diamond actually knew about the McGuire, Woods/Rejmolds Metals relationship more than three years before he filed suit. But even if he did not, I also conclude that Diamond, in the exercise of required reasonable diligence, would have discovered this relationship that long ago. The record shows the following:

A. Sometime between June 15 and August 9, 1984, Diamond apparently told William Lytton, one of his Delaware lawyers, that Diamond was aware of a relationship between McGuire, Woods and “Reynolds Metals.” 2 A portion of Lytton’s notes from a telephone conversation with Diamond during that period says: “IRS problem. Carle Davis — Richmond VA McGuire, Woods, & Battle (also rep. Reynolds Metals) OK for us to talk to them.” (Emphasis added.)

B. Diamond has attempted to refute this evidence, alleging he has created a genuine issue of material fact negating summary judgment, by supplying an affidavit on September 9, 1993 that includes the following statement:

Early in that Delaware litigation William B. Lytton, an attorney in my Philadelphia law firm asked me the nature of the tax matter in Richmond, and asked me whether I was adequately represented in that matter. I responded that I thought I was well represented, and that my lawyer was Carle E. Davis of McGuire Woods, who must know his tax stuff because he’d done [David] Reynolds’ taxes .... I frankly believe Mr. Lytton’s notes to represent a misunderstanding in communication from me to him. I never told him that McGuire Woods represented Reynolds Metals .... (Emphasis added.)

In short, Diamond contends that attorney Lytton misunderstood him, since Diamond merely had indicated to Lytton that McGuire, Woods attorney Davis had done David Reynolds’ taxes.

C.The question, then, is whether this affidavit creates a genuine issue of material fact — precluding summary judgment — as to whether in 1984, or at least sometime more than three years before he filed suit, Diamond knew McGuire, Woods represented Reynolds Metals. As elaborated below, there are several pieces of record evidence that substantially undercut Diamond’s denial of such knowledge. The following evidence may not assuredly show that Diamond knew of the McGuire, Woods/Reynolds Metals connection in 1984, as Lytton’s notes ostensibly confirmed; but it does show — applying the “discovery rule” — that Diamond knew enough during 1984 and 1985 to achieve “inquiry notice” of his claims, through the exercise of reasonable diligence, more than three years before he filed suit.

First, in a deposition on August 21, 1990, Diamond testified that the first time he had learned of “any relationship” between Carle Davis and David Reynolds was in the spring of 1985. If that was true, Diamond has effectively undermined, under oath, the statement he made under oath in his affidavit three years later, on September 9,1993, that, in his 198) conversation with attorney Lyt-ton, Diamond had been referring only to Davis’s tax work for David Reynolds, not (as Lytton had recorded) to McGuire, Woods’ representation of Reynolds Metals. If Diamond’s 1990 deposition was true, his 1993 affidavit had to be false — or vice versa. Either way, in attempting to show a genuine issue of material fact, Diamond’s repudiation *387 of Lytton’s notes of the 1984 conversation is suspect.

Second, in the very September 9, 1993 affidavit in which he claims attorney Lytton misunderstood his reference to Reynolds during the 1984 conversation, Diamond also acknowledged that, in his mind, David Reynolds and Reynolds Metals were interchangeable:

It is my recollection that I specified David Reynolds when I told Mr. Lytton of this [relationship between McGuire, Woods and Reynolds]. However, I must confess that for some time during that litigation there was a bad habit I — and to some extent my lawyers — had of referring to either or both simply as “Reynolds,” since in my mind, at least, Reynolds Metals was simply an extension of David Reynolds. (Emphasis added.)

Thus, even if, in Diamond’s 1984 conversation with attorney Lytton, Diamond had been referring only to Davis’s handling of David Reynolds’ taxes, Diamond’s own affidavit indicates that Diamond would have known that this tax work for David Reynolds effectively reflected a relationship between Davis (and thus his firm McGuire, Woods) and the man (David P. Reynolds) who was Board Chairman of Reynolds Metals — a relationship presumably sympathetic with the fortunes of Reynolds Metals itself.

Third, in a letter of October 7, 1985 to attorney Kohn, Diamond not only expressed a concern about outside interference with his tax fraud trial before Judge Merhige by “Reynolds,” but also identified his concern that McGuire, Woods’ handling the appeal of Diamond’s tax fraud conviction “might cause problems for a firm [McGuire, Woods] that has to deal with Merhige every day and which represents Reynolds .(Emphasis added.) This letter.indicates that, in 1985, Diamond was aware that Davis’s firm (McGuire, Woods) “represented] Reynolds,” which implies Diamond’s awareness of more than assistance by Carle Davis in preparing David Reynolds’ tax returns. It implies, at the very least, that Diamond knew McGuire, Woods had an ongoing lawyer-client relationship with David P. Reynolds (Board Chairman of Reynolds Metals) and, very likely, with Reynolds Metals itself, which in Diamond’s mind “was simply an extension of David Reynolds.” 3

Finally, Diamond has never made clear in any event why his knowledge of the McGuire, Woods/Reynolds Metals relationship was necessary to the alleged conspiracy, in light of his acknowledged awareness of the McGuire, Woods/David Reynolds connection. David P. Reynolds was Board Chairman of Reynolds Metals — a fact Diamond presumably knew (among other reasons) because Diamond had been financial vice president and a director of Robertshaw Controls Co., which Reynolds Metals Co. substantially owned. See supra note 1. Diamond acknowledged in his September 9, 1993 affidavit, moreover, that in his mind Reynolds Metals “was simply an extension of David Reynolds.” Furthermore, Diamond’s Delaware RICO suit named David P. Reynolds, as well as Reynolds Metals Co., as a defendant. Accordingly, even if Diamond learned about the McGuire, Woods/Reynolds Metals relationship less than three years before he filed suit, Diamond unquestionably knew, more than three years before he filed suit, enough facts about McGuire, Woods’ connections with David P. Reynolds (and with Judge Merhige) to know that the law firm had a basis for pursuing its alleged conspiratorial aims on behalf of the Reynolds family without regard to any formal McGuire, Woods/Reynolds Metals connection. 4

*388 D. In any event, I shall assume for the sake of argument that Diamond had to learn of the McGuire, Woods/Reynolds Metals connection in order to establish his conspiracy and other claims, and that all the above evidence in Diamond’s letters, deposition, and affidavit do not show conclusively that Diamond knew, before he saw the SEC filing in November 1986, that McGuire, Woods represented Reynolds Metals. Even so, it is clear that, despite any fraudulent concealment of the McGuire, Wood/Reynolds Metals relationship, Diamond had enough information more than three years before he filed suit to put him on “inquiry notice” of his conspiracy and related claims through the required exercise of reasonable diligence. More specifically, without question Diamond knew his injury (conviction of tax fraud) and its cause (Judge Merhige’s verdict facilitated by McGuire, Woods’ recommendation that Diamond opt for a bench trial). The only remaining inquiry notice issue was whether Diamond knew, or in the exercise of reasonable diligence would have known, “some evidence of wrongdoing.” Ante at 380.

In this connection it is important to recall that in Diamond’s October 7, 1986 letter to Harold Kohn, his attorney in the RICO litigation, Diamond showed he knew that McGuire, Woods might have “problems” because Diamond knew the firm had “to deal with [Judge] Merhige,” known to Diamond as a friend of the Reynolds family, “every day.” Even more significantly, that letter reflected Diamond’s awareness that the McGuire, Woods firm “represents Reynolds.” Even if Diamond was referring only to representation of David P. Reynolds, Board Chairman of Reynolds Metals Co., any reasonable person in Diamond’s situation, given the same information clearly showing McGuire, Woods’ possible conflict of interest from representing “Reynolds,” would have undertaken diligent efforts to find out whether McGuire, Woods also represented Reynolds Metals Co. — a possibility Diamond surely had reason to entertain because, in his mind, the company was “simply an extension of David Reynolds.” There is no reason to believe Diamond could not have learned about such representation either by directly asking his own McGuire, Woods attorney, Carle Davis, or by scrutinizing Reynolds Metals’ annual reports or other public documents (such as the company’s SEC filings), and thereby acquired an awareness of sufficient facts to identify, at least circumstantially, the alleged conspiracy. In short, in the exercise of reasonable diligence Diamond would have learned of all the relationships necessary to the conspiracy he has alleged on the basis of those relationships and thereby uncovered “some evidence of wrongdoing.” 5

*389 On this record, therefore, Diamond should be deemed as a matter of law to have had “inquiry notice” of his claims more than three years before he filed suit, despite alleged fraudulent concealment of the McGuire, Woods/Reynolds Metals relationship. Diamond’s suit accordingly is barred by the statute of limitations.

II.

Although I conclude that affirmance is required under the discovery rule “inquiry notice” standard the majority has applied here, I believe that this is the wrong standard for fraudulent concealment cases, and that the majority is creating bad law for future eases in which the difference in standards will make a difference in results. See, e.g., Jones v. Meridian Towers Apartments, Inc., 816 F.Supp. 762 (D.D.C.1993) (concluding, in case of fraudulent concealment, that plaintiffs had inquiry notice but not the “heightened notice” necessary to begin running of statute of limitations). On the proffered facts of this case, however, seen in the light most favorable to Diamond, I conclude that even under the correct standard the judgment should be affirmed.

A. The Discovery Rule and “Inquiry Notice”

For statute of limitations purposes a claim usually accrues at the time an injury occurs. See Bussineau v. President and Directors of Georgetown College, 518 A.2d 423, 425 (D.C.1986). We have said, however, that “where the relationship between the fact of injury and the alleged tortious conduct is obscure” — for example, in a medical malpractice action where it is unclear that a physician’s negligence caused particular pain or failure to heal — a “discovery rule” is applied “to determine when the statute of limitations commences.” Id. (citations omitted). Under this rule, the claim does not accrue until one knows — or by the exercise of reasonable diligence should know — of (1) the injury, (2) its cause in fact, and (3) some evidence of wrongdoing. See Knight v. Furlow, 553 A.2d 1232, 1234 (D.C.1989); Bussineau, 518 A.2d at 425-26 .

The discovery rule, therefore, incorporates a species of “inquiry notice.” Id., 518 A.2d at 427 ; Kelton v. District of Columbia, 413 A.2d 919, 921 (D.C.1980). As a consequence, the period of limitations, although tolled for awhile, begins to run as soon as the three criteria defining the required inquiry are satisfied; it does not await the injured person’s discovery of all the essential elements of a possible claim: duty, breach, causation, damages. See id., 413 A.2d at 921 n. 4. 6 Indeed, in Bussineau , in holding that a plaintiff can be on inquiry notice by knowing, or having reason to know, only “some evidence of wrongdoing” — for example, an awareness of “possible negligence,” id., 518 A.2d at 431— we explicitly stated a restriction: the District of Columbia rule does not extend as far as the rule, adopted in some states, that a plaintiff will not have inquiry notice until aware of “all” the essential elements of the claim. Id. at 431 n. 11; see id. at 433-35 .

Thus, the discovery rule not only tolls the statute of limitations but, at the same time, effectively creates a duty of inquiry; that is, an injured person will be deemed to have legal notice of the claim, and the statute of limitations will begin to run, not only when that person actually learns about the claim but also as of any earlier time the injured person can be said to have “inquiry notice” of the claim and fails to discover available details. 7 To be as clear as possible: the concept of inquiry notice under the discovery *390 rule, articulated in cases of injury to another person such as Knight and Bussineau , means that a potential plaintiff may be legally accountable for investigating a possible claim before learning “some evidence of wrongdoing.” The facts deemed sufficient to warrant an inquiry presumably are clear enough to lead a potential plaintiff to evidence of wrongdoing, and thus they are sufficient to justify commencement of the limitation period as of the time a plaintiff should have discovered some wrongdoing in the exercise of due diligence, even though the plaintiff has not done so. The assumption underlying commencement of the limitation period based merely on inquiry notice is that the potential plaintiff, in the exercise of reasonable diligence, not only will soon learn evidence of wrongdoing but also, through further investigation, eventually will learn sufficient details of a claim to justify filing suit before the applicable limitation period expires.

B. Fraudulent Concealment and “Heightened Notice”

Paralleling the discovery rule is another tolling rule that applies, not when the relationship between the injury and actionable conduct is merely “obscure,” Bussineau, 518 A.2d at 425 , but when that relationship, more significantly, has been “fraudulently concealed.” A fraudulent concealment occurs in either of two ways: (1) when the defendant has taken affirmative steps to prevent discovery of the claim or its underlying facts, see Bailey v. Greenberg, 516 A.2d 934, 941 (D.C.1986); Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C.1982), 8 or (2) when the defendant, acting as a fiduciary, has failed to speak about a matter to its principal while having a duty to do so, see Searl v. Earll, 95 U.S.App.D.C. 151, 155-56 , 221 F.2d 24, 27-29 (1954). 9

Obviously, “the doctrine of fraudulent concealment does not come into play, whatever the lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on [actual] notice of a potential claim.” Hobson v. Wilson, 237 U.SApp.D.C. 219, 253, 737 F.2d 1, 35 (1984), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 . Furthermore, we have recognized that, even when there is fraudulent concealment, a plaintiff without actual notice of a wrong may nonetheless learn enough facts. — have enough notice — to justify commencement'of the statute of limitations period. We have variously stated this notice requirement, however, without defining how it differs, if at all, from inquiry notice under the discovery rule.

Over the last century, the United States Court of Appeals for the District of Columbia Circuit, and later this court, have taken an almost uniform approach to fraudulent concealment. Beginning with Lewis v. Denison, 2 App.D.C. 387 (1894), the circuit court said:

the bar of the statute of limitations will not commence to run in equity until the fraud has been discovered, or until such time as by the use of ordinary care it might reasonably have been discovered.

*391 Id. at 391 (emphasis added). Two decades later, in P.H. Sheehy Company v. Eastern Importing & Mfg. Company, 44 App.D.C. 107 (1915), the court cited Lewis but stated the test somewhat differently:

the statute of limitation only began to run from the time when plaintiff, by the exercise of ordinary diligence under all the circumstances of the case, ought to have ascertained the facts of this breach of the warranty.

Id. at 112 (emphasis added). Thereafter, the courts virtually alternated between the Lewis formulation 10 and the P.H. Sheehy formulation, 11 basically a “could have known” versus a “should have known” test.

But whatever test is the proper one (this court has used “should have” five times and “could have” three times), this aspect of the due diligence test is only a minor part of the issue, and not of particular relevance here. 12 More importantly, neither Lewis nor P.H. Sheehy — nor any of the other cited cases— discusses the nature or amount of knowledge that triggers the due diligence obligation. At the most, in P.H. Sheehy, the court refers to “the exercise of ordinary diligence under all the circumstances of the case.” Id. at 112. So the question remains: when there is fraudulent concealment, is the information threshold that triggers due diligence equal to — or higher than — the threshold that satisfies the “inquiry notice” standard under the “discovery rule”?

Unquestionably, the “due diligence” requirements sound the same, respectively, under the tests for inquiry notice in “obscurity” cases (invoking the discovery rule) and in “fraudulent concealment” cases; but, the extent of the diligence required in actual fact can be quite different in these respective instances if the nature and amount of information sufficient to trigger the diligence inquiry in obscurity cases is different from the level of information required to trigger due diligence in fraudulent concealment cases.

Lewis merely said:

If it was made to appear on the trial that the defendant left the fraud concealed, or that it was of such a nature as to remain concealed after perpetration, and that therefore plaintiff did not discover it, nor discover any facts sufficient to put him [or her] upon inquiry, which if followed uñth ordinary diligence would have led to its discovery, until within three years before *392 the time of filing his [or her] suit, the statute of limitations will be no bar to his [or her] recovery.

2 App.D.C. at 393 (emphasis added). Despite use of the word “inquiry,” this language did not come to grips, any more than the language of P.H. Sheehy did, with the question of how high the information threshold must be, ie., what “facts” are “sufficient” to put a plaintiff on notice of a fraudulently concealed claim. As far as I have been able to discover by reading the cases, moreover, no decision in this jurisdiction had ever discussed the question whether the information threshold is the same or different for discovery rule cases and for fraudulent concealment cases until the D.C. Circuit addressed that issue in Hobson v. Wilson, 237 U.S.App.D.C. 219, 253 , 737 F.2d 1, 35 (1984), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985). 13

Hobson concerned claims that agents of the FBI, of the Metropolitan Police Department, and of the District of Columbia itself had conspired, using various secret and deceptive schemes in violation of plaintiffs’ statutory and constitutional rights, “to impede plaintiffs’ efforts to associate with others for the purpose of publicly expressing opposition to the Vietnam War, national and local Government race relations policies, and other Government activities.” Id. at 228, 737 F.2d at 9 . Among the issues was the question whether claims of certain plaintiffs who had prevailed at trial were barred by the three-year statute of limitations.

The plaintiffs in Hobson replied to the limitations defense by alleging fraudulent concealment. Apparently because of potentially important case law distinctions applicable to the notice issue, the court focused initially on the situation where fraud is part of the claim itself (in contrast, for example, with a claim for personal injury). More specifically, the court distinguished cases of “self-concealing” fraud from cases of actively concealed fraud. Id. at 252 & n. 102, 737 F.2d at 33 & n. 102. In the first, “the concealment is inherent in the fraud itself’; the deception “is a necessary step in carrying out the illegal act.” Id. at 252 n. 102, 737 F.2d at 33 n. 102. In the second, “the defendant has engaged in affirmative acts of concealing beyond the original fraud itself’; Campbell v. Upjohn Co., 676 F.2d 1122, 1127 (6th Cir.1982); “the fraud goes undiscovered because the defendant has taken positive steps after commission of the fraud to keep it concealed.” Tomera v. Galt, 511 F.2d 504, 510 (7th Cir.1995); see Hobson, 237 U.S.App.D.C. at 253-54 , 737 F.2d at 33-34 .

The distinction is important in showing how seriously the courts have taken fraud in tolling the statute of limitations. Under the equitable tolling rule in some federal circuits, when there is evidence of the second or “active” kind of fraudulent concealment — in effect compounding the initial fraud, making it all the more difficult to discover — the statute of limitations does not begin to run until the plaintiff has actual notice of the facts necessary to bringing the claim, without any limiting requirement of due diligence whatsoever. See Robertson v. Seidman & Seidman, 609 F.2d 583, 593 (2d Cir.1979); Tomera, 511 F.2d at 510 . Contra Campbell, 676 F.2d at 1128 (due diligence required when active concealment, as well as self-concealment, is shown). Actual notice, therefore, is often required to lift the tolling of the limitation period as the price for fraud-on-fraud or double fraud. 14

The present case (like Hobson) concerns only self-concealing fraud: the alleged *393 breach of Davis’s and the McGuire, Woods law firm’s fiduciary obligation, as Diamond’s attorneys, to disclose to Diamond their relationship with Reynolds Metals. See, e.g., Searl, 95 U.S.App.D.C. at 155-56 , 221 F.2d at 27-29 ; supra note 9. Diamond has not alleged, in addition, that Davis and his firm have acted affirmatively to negate or hide that Reynolds relationship. Compare Robertson, 609 F.2d at 593 (remanding on issue of fraudulent concealment where accounting firm not only certified fraudulent financial statement but also affirmatively sought to cover up by altering work papers and destroying documentary evidence). Accordingly, any tolling here based on fraudulent concealment must hold Diamond accountable for the required due diligence. See, e.g., Hobson, 237 U.S.App.D.C. at 252-54 , 737 F.2d at 33-35 ; Richards v. Mileski, 213 U.S.App. D.C. 220, 226, 662 F.2d 65, 71 (1981); Wachovia Bank & Trust Co., N.A. v. National Student Mktg. Corp., 209 U.S.App.D.C. 9, 16 , 650 F.2d 342, 349 (1980); Smith v. Nixon, 196 U.S.App.D.C. 276, 283-84 , 606 F.2d 1183, 1190-91 (1979); Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 83-84 , 553 F.2d 220, 228-29 (1977).

Although Diamond, therefore, has a due diligence responsibility, the facts required to trigger that responsibility when there is self-concealing fraud — and here is where I disagree, fundamentally, with the majority— cannot be as flimsy, indirect, and circumstantial as those that will trigger inquiry notice under the discovery rule. See Hobson, 237 U.S.App.D.C. at 254 , 737 F.2d at 35 .

A claim accrues under the discovery rule when one knows, or by the exercise of reasonable diligence should know — based on evidence as insubstantial as hints, suspicions, and rumors — of an injury, its cause in fact, and some evidence of wrongdoing. See Knight, 553 A.2d at 1234 ; Bussineau, 518 A.2d at 425-26 ; Hobson, 237 U.S.App.D.C. at 254 , 737 F.2d at 35 . Inquiry notice, therefore, can arise upon unconfirmed information that, through reasonable diligence, should lead at least to evidence of a suspected, though ill-defined, wrong.

In contrast, according to Hobson , a claim will not accrue when there has been self-concealing fraud until the plaintiff is aware of sufficient facts to identify, in the exercise of reasonable diligence, a particular claim, not merely some evidence of wrongdoing. See id. This means that the factual basis necessary to trigger the exercise of reasonable diligence must be complete and precise enough — a sufficiently clear road map — to direct a diligent plaintiff to a verifiable claim. 15

In the one case, therefore, the factual basis can be thin, perhaps even out of focus, but enough to trigger the required due diligence to pursue possible evidence of wrongdoing. In the other case, the factual basis must be solid enough, and in sufficient focus, for the required due diligence to reveal an articula-ble claim. Thus, in the first case, when there is inquiry notice, the plaintiff may have to do considerable investigation thereafter before filing a lawsuit; in the other case, by the time the plaintiff is deemed to have notice, that plaintiff will have close to enough information to go to court.

Judge Harris of the United States District Court in this jurisdiction has characterized this latter notice requirement, triggering due diligence when there has been fraudulent concealment, as a requirement of “heightened” notice of the fraud — “something closer to actual notice than the merest inquiry notice.” Jones, 816 F.Supp. at 770 (citing Aid- *394 dell v. Riddell Washington Corp., 275 U.S.App.D.C. 362, 373 , 866 F.2d 1480, 1491 (1989)). 16 Obviously, all notice requirements, short of actual notice, are somewhat elusive and hard to define, but the case law has come to apply two different standards, inquiry notice and heightened notice — however imperfectly articulated each may be — when there is tolling, respectively, under the discovery rule for obscurely caused injuries and under a regime of fraudulent concealment for even harder to identify claims.

The foregoing analysis makes clear, I trust, that although both “inquiry” notice based on the discovery rule and “heightened” notice based on fraudulent concealment require the plaintiff to exercise “reasonable” or “due” diligence in ascertaining the claim, the “facts sufficient” 17 to trigger the diligence obligation under those respective notice regimes are at two different levels. The threshold in fraudulent concealment cases is substantially higher for the obvious reason that fraud makes most claims more difficult to discover, and thus a prospective plaintiff should be entitled to more leeway in uncovering the claim before the statute of limitations begins to run. See Riddell, 275 U.S.App.D.C. at 373 , 866 F.2d at 1491 .

In light of the ease law, therefore, how shall the “heightened” notice test be formulated, with a view to proper jury instructions? Before Hobson , the D.C. Circuit had “refined its approach to eases involving self-concealing wrongs,” Hobson, 237 U.S.App.D.C. at 254 , 737 F.2d at 35 (emphasis omitted), and provided the following test for required due diligence:

The test of due diligence [when there has been fraudulent concealment] measures the plaintiffs efforts to uncover his [or her] cause of action against what a reasonable person would have done in his [or her] situation given the same information.

Richards v. Mileski, 213 U.S.App.D.C. 220, 226 , 662 F.2d 65, 71 (1981) (emphasis added). Then, on the same page in Richards , the court suggested that when there is fraudulent concealment, a reasonable prospective plaintiff will not be accountable for failure to pursue a claim, in the exercise of due diligence, unless the given information provides “special reason” to pursue it. Id. “Special reason,” therefore, is the idea — the concept — • that triggers “heightened notice.” Mere “hints, suspicions, hunches or rumors” can comprise the lesser kind of information that puts a plaintiff on “inquiry notice.” Hobson, 237 U.S.App.D.C. at 254 , 737 F.2d at 35 ; see Riddell, 275 U.S.App.D.C. at 376 , 866 F.2d at 1494 . But when there is fraudulent concealment, the plaintiff will have “heightened” notice, and thus will be held responsible for due diligence, only when (as I would formulate the test derived from the case law):

a plaintiff knows the specifies of a particular claim, or confronts disclosed facts giving special reason to undertake a search, in the exercise of due diligence, that is likely to reveal the specifics of a particular claim.

In summary, when there is fraudulent concealment, “inquiry notice” under the discovery rule ordinarily comes earlier than “heightened notice” because, presumably, lesser quality information is required to generate “some evidence of wrongdoing,” in the exercise of due diligence, than the kind of information required to generate the details of a particular claim. Because under either form of notice a plaintiff presumably will have time to ascertain the details necessary for a lawsuit within the prescribed limitation period, the “heightened notice” standard in effect allows a prospective plaintiff who is the victim of fraudulent concealment a head start — before the limitation period begins— over a plaintiff who is not impeded by an effort to cover up the claim.

Perhaps one way of making the comparison would be to say that, when there is “obscurity” but no “fraudulent concealment,” there may be inquiry notice based on hints or rumors that, in the exercise of reasonable *395 diligence, would lead to “some evidence of wrongdoing” — followed by further investigation that eventually would uncover the details of a claim. In contrast, when there is fraudulent concealment, probably “some evidence of wrongdoing” itself will be enough — and perhaps necessary — to give the “special reason” required to trigger an inquiry, in the exercise of reasonable diligence, that will lead to the particulars of a claim. When, for example, an attorney fails to disclose important information to a client, with the result that the client keeps trusting the attorney, that fraudulent concealment will suffice to cover up the significance of hints or rumors that might otherwise suggest deception, and thus will continue to toll the statute of limitations until harder information comes the client’s way, giving special reason to pursue the matter. Visually, the comparison can be shown as follows:

[[Image here]]

*396

C. Disposition

In this case, even under a heightened notice standard, I conclude that Diamond’s claim is time barred. He had actual notice of the Merhige/Reynolds relationship, of Davis and McGuire, Woods’ knowledge of that relationship, and of Davis and McGuire, Woods’ attorney-client relationship with Judge Mer-hige as the Reynolds executor. He also had actual knowledge that Davis, and thus McGuire, Woods, had an attorney-client relationship with David Reynolds, whom he considered an alter ego of Reynolds Metals (“simply an extension of David Reynolds”). As early as October 7, 1985 in his letter to attorney Harold Kohn, Diamond acknowledged that McGuire, Woods might have “problems” handling his criminal appeal because Diamond was aware that the firm had “to deal with Merhige,” a friend of the Reynolds family, “every day.”

Under these circumstances, Diamond had “facts sufficient,” Lewis, 2 App.D.C. at 393 , to put him on heightened notice of his conspiracy claim. The disclosed facts were enough to suggest the kind of relationship between Davis (or McGuire, Woods) and Reynolds Metals that supplied what Diamond himself has said was the only missing piece of information necessary to suggest a Mer-hige/Reynolds Metals/McGuire, Woods conspiracy. More specifically, the disclosed facts gave Diamond special reason to undertake a search that, in the exercise of due diligence, was likely to reveal the specifics required for filing his conspiracy claim.

[[Image here]]

For the foregoing reasons, I concur in the judgment to affirm but respectfully dissent from the majority’s failure to recognize the “heightened” notice standard that applies in such cases of fraudulent concealment.

. Diamond had been vice president of finance and a member of the board of directors of Ro-bertshaw Controls Co., of which Reynolds Metals Co. held 30% of the stock. When Diamond ob *386 jected to Reynolds Metals’ acquiring an additional 10% of Robertshaw's stock, Diamond was fired.

. It is true, as Judge Ruiz points out, ante at 382 that Lytton's notes are not dated. They were found, however, in a chronologically organized stack of papers between a document dated June 15, 1984 and another dated August 9, 1984. Of compelling significance, Lytton testified that the conversation occurred between those two dates. Diamond himself, moreover, stated in his September 9, 1993 affidavit that the conversation on which Lytton's notes were based took place "early in that Delaware litigation.” The Delaware suit was filed in May, 1984.

. Judge Ruiz’s argument that Diamond’s use of the word "represents” in the letter to Kohn does not necessarily refer to anything more than Carle Davis’s work on David Reynolds tax returns, see ante at 383, misses the point. Diamond was aware of a relationship between McGuire, Woods and “Reynolds” that would make it problematic for McGuire, Woods to argue on appeal of Diamond's tax fraud conviction that "Reynolds” had improperly influenced Diamond's conviction by Judge Merhige. This fact indicates that Diamond knew enough to trigger his obligation, in the exercise of reasonable diligence, to inquire further into the nature and extent of the McGuire, Woods/"Reynolds” relationship.

. It is reasonably inferable from undisputed facts of record that any interest Davis and McGuire, Woods had in arranging for Diamond’s tax fraud conviction by Judge Merhige would have been motivated as much by a desire to help David P. Reynolds himself as to help Reynolds Metals.

*388 For this reason, it is not readily apparent why the particular relationship Diamond says Davis and McGuire, Woods fraudulently concealed— the McGuire, Woods/Reynolds Metals connection — was essential to the conspiracy he has alleged, unless Diamond is prepared to argue what he has never said: that the McGuire, Woods fee potential or other benefits from the firm's Reynolds Metals representation was the critical factor driving the conspiracy, and thus somehow could be divorced from the firm's concern about, and relationship with, David P. Reynolds himself.

. In the dissenting portion of her opinion, Judge Ruiz says that she cannot conclude "as a matter of law that a reasonable person who had Diamond's suspicions of bias on the part of Judge Merhige [because of his relationship with the Reynolds family] and [Diamond’s] knowledge of the professional connection between Judge Mer-hige and defendants would have conducted an investigation that would have led to discovery of wrongdoing on the part of defendants to Diamond’s detriment." Ante at 383. Judge Ruiz adds that she cannot conclude "that the undisputed fact that Diamond knew of apparently minor tax representations of a member of the Reynolds family by Davis should have triggered an investigation to discover a broader representation.” Ante at 384. I might agree if these two groups of relationships could be considered separately. But they cannot. The point is that Diamond had knowledge, before September 1986, of three relationships: Judge Merhige's with the Reynolds family; the law firm's with Judge Mer-hige on behalf of the Reynolds family; and the law firm’s with "Reynolds” — meaning at least with David Reynolds, who in Diamond’s mind was an alter ego of Reynolds Metals. The premise of Diamond's appeal is that he was unaware of a McGuire, Woods/Reynolds Metals connection, meaning that he would be on notice of the alleged conspiracy once he had that withheld information. In light of Diamond's statement under oath in his September 19, 1993 affidavit that in his mind "Reynolds Metals was simply an extension of David Reynolds,” I believe he had information which, in the exercise of reasonable diligence, would have led, before the limitation period expired, not only to "some evidence of wrongdoing” but, more significantly, to the very conspiracy Diamond eventually identified.

. See also Baker v. A.H. Robins Co., Inc., 613 F.Supp. 994, 996 (D.D.C.1985) (“The fact that [plaintiff] did not then comprehend the full extent of all possible sequelae does not matter, for the law of limitations requires only that she have inquiry notice of the existence of a cause of action for personal injury.”).

. We have held in another context not involving personal injury that one is legally on notice — on "inquiry notice" — of an unrecorded interest in real property when he or she "is aware of circumstances which generate enough uncertainty about the state of title that a person of ordinary prudence would inquire further about those circumstances.” Clay Properties v. The Washington Post, 604 A.2d 890, 895 (D.C.1992) (en banc). In that situation, one is deemed “on inquiry notice of all facts and outstanding interests which a reasonable inquiry would have revealed,” id.., even though the inquiry had not been made.

. See also William J. Davis, Inc. v. Young, 412 A.2d 1187, 1191 (D.C.1980) ("the defendant must have done something of an affirmative nature designed to prevent discovery of the cause of action.”). Richards v. Mileski, 213 U.S.App.D.C. 220, 225 , 662 F.2d 65, 70 (1981) ("Fraudulent concealment requires that the defendant commit some positive act tending to conceal the cause of action from the plaintiff, although any word or act tending to suppress the truth is enough."); Adrian v. American Security & Trust Co., 211 A.2d 771, 772 (D.C.1965) ("Even concealment or silence is not enough absent some trick or connivance by the bank to exclude a suspicion or to prevent discovery of the right of action by use of ordinary diligence."); Poole v. Terminix Co. of Maryland & Washington, 84 A.2d 699, 702 (D.C.Mun.App.1951) ("Concealment by mere silence is not enough. There must be some trick or connivance intended to exclude suspicion and to prevent discovery of the cause of action by the use of ordinary diligence.").

. See also Riddell v. Riddell Washington Corp., 275 U.S.App.D.C. 362, 377-78 , 866 F.2d 1480, 1495-96 (1989) (where there is fiduciary duty to disclose information, failure to do so constitutes fraudulent concealment); Bergen v. L.F. Rothschild, Unterberg, Towbin, 685 F.Supp. 1, 2-3 (D.D.C.1988) (in action against securities brokers for churning, “plaintiffs’ failure to plead affirmative acts by defendants [securities brokers] to conceal the amount of trading is not dispositive on the issue of whether plaintiffs have pled sufficient facts to toll the statute of limitations”); General Aircraft Corp. v. Air America, Inc., 482 F.Supp. 3, 8 (D.D.C.1979) (“absent a duty to speak, mere silence, nondisclosure or denial is not sufficient to toll the statute”).

. Poole v. Terminix Co. of Maryland & Washington, 84 A.2d 699, 700 (D.C.Mun.App.1951) ("by the exercise of reasonable diligence the fraud could have been discovered ”) (emphasis added); Westinghouse Electric Corp. v. City of Burlington Vermont, 122 U.S.App.D.C. 65, 67 , 351 F.2d 762, 764 (1965) ("by the exercise of due diligence could have known, that he may have had a cause of action") (emphasis added); Emmett v. Eastern Dispensary and Casualty Hospital, 130 U.S.App. D.C. 50, 57, 396 F.2d 931, 938 (1967) ("by the exercise of due diligence could have known that he may have had a cause of action”) (emphasis added); Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 83 , 553 F.2d 220, 228 (1977) ("by reasonable diligence could have discovered, the basis of the lawsuit") (emphasis added); Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 996 (D.C.App.1978) ("by the exercise of due diligence could have known, that he may have had a cause of action”) (emphasis added); Estate of Chappelle v. Sanders, 442 A.2d 157 -58 (D.C.App.1982) ("by the exercise of due diligence could have known, that he may have had a cause of action") (emphasis added).

. Wiren v. Paramount Pictures, 92 U.S.App.D.C. 347 , 349, 206 F.2d 465 (1953) (“from the time such facts should reasonably have been ascertained in the exercise of due diligence”) (emphasis added); Kraft v. Lowe, 77 A.2d 554, 557-58 (D.C.Mun.App.1950) ("from the time when the facts should have reasonably been found out in the exercise of due diligence”) (emphasis added); White v. Piano Mart, 110 A.2d 542, 543 (D.C.Mun.App.1995) ("from the time when the facts should have reasonably been found out in the exercise of due diligence”) (emphasis added); Maddox v. Andy’s Refrigeration & Motor Service Co., 160 A.2d 799, 800 (D.C.Mun.App.1960) ("from the time when such facts should have been ascertained by due diligence”) (emphasis added); King v. Kitchen Magic, Inc., 391 A.2d 1184, 1186 (D.C.1978) ("from the time the fraud either is discovered or reasonably should have been discovered ”) (emphasis added); William J. Davis, Inc. v. Young, 412 A.2d 1187, 1193 (D.C.1980) (claim "did not accrue until he discovered, or reasonably should have discovered, facts indicating that such a claim existed") (citing Fitzgerald, 180 U.S.App.D.C. at 83 , 553 F.2d at 228 (“by reasonable diligence could have discovered ”) (emphasis added)).

.Presumably, either formulation means the plaintiff would have discovered the claim — and is legally accountable for doing so — if the plaintiff had conducted a reasonably diligent inquiry based on sufficient information at hand.

. This court in William J. Davis, Inc., 412 A.2d at 1193 n. 16, and in Weisberg, 390 A.2d at 996 n. 8, earlier had noted that the "reasonably could/ should have discovered” rule, applicable in cases of fraudulent concealment, is "similar" to the approach taken under the discovery rule. But in both footnotes we left it at that, implying that there may be a difference but that any definitive comparison of the two would await another day.

. There are claims, such as those for personal injury, which are not premised in any way on fraud but nonetheless may involve fraudulent concealment because the defendant affirmatively covers up facts in support of the claim. Because there is only a single layer of fraud, these cases do not fall into the active concealment category that the courts have associated with fraud-on-fraud; rather, these cases are treated for notice purposes like the self-concealing fraud cases, which involve a single layer of fraud. See e.g., Bailey, 516 A.2d at 941 ; Estate of Chappelle, 442 A.2d at 158 ; supra note 8.

. The United States Court of Appeals for the District of Columbia Circuit has perceived no material difference between its analysis when fraudulent concealment is at issue and the law of the District of Columbia. See Hobson v. Wilson, 237 U.S.App.D.C. 219 , 256 n. 113, 737 F.2d 1 , 37 n. 113 (1984), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985). In one respect, however, not relevant to the decision in Hobson , District of Columbia law does differ from the law of the District of Columbia Circuit. In Hobson , the court ruled that, to negate fraudulent concealment, the plaintiff must be aware not only of "sufficient facts to identify a particular cause of action” but also of facts identifying “the persons responsible for the injury.” 237 U.S.App.D.C. at 254, 255 , 737 F.2d at 35, 36 . In Estate of Chappelle , however, we held that fraudulent concealment of the identities of the allegedly liable parties, when the existence of the cause of action itself was known, did not toll the running of the statute of limitations. 442 A.2d at 158-59 .

. Judge Ruiz writes at some length, see ante at 376-79, about the inconsistency she perceives between Hobson and Riddell , a case in which there were jury issues both of self-concealing fraud and of actively concealed fraud in connection with valuation of a business. A close read-mg of both cases reveals no inconsistency. In any event, I do not understand why any possible inconsistency would be relevant here.

. Lewis, 2 App.D.C. at 393 .