The Magazine of Illinois Lawyers

March 2018Volume 106Number 3Page 18

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Please take that IRS Circular 230 disclaimer off your email footer

Since 2014 the IRS has been asking lawyers to remove the footer, which is no longer accurate. Yet it still circulates widely in email signatures.

It seems that every attorney appends boilerplate disclaimers - sometimes lengthy ones - at the bottom of emails. For many, it may be a standard footer the entire firm uses. For others, it might be something borrowed from another lawyer. Whatever the value of these disclaimers in general, many still contain some language that is not only unnecessary but inaccurate in its most familiar form - the IRS Circular 230 disclaimer.

On June 9, 2014, the IRS finalized a rulemaking process that rendered the Circular 230 disclaimer obsolete. The IRS Office of Professional Responsibility has been asking practitioners to remove the Circular 230 language from email footers since the change was finalized.

Karen Hawkins, former director of the IRS Office of Professional Responsibility ("OPR"), warned at the time that the language of most Circular 230 disclaimers is no longer accurate. "My only concern and my message is, if a disclaimer says 'The Internal Revenue Service says' or 'I am required under Circular 230' I can promise you that you will get a letter from my office asking you to cease and desist using that kind of language because I don't want taxpayers to be misinformed" (read her comments at

Many attorneys might not even know why they incorporated the Circular 230 language into their email footers in the first place. It was designed to allow practitioners to inform clients that their advice was not intended to help people cheat on their taxes.

Prior to 2014, if an email contained potential tax advice, also called a "reliance opinion" or "covered opinion," the Circular 230 disclaimer put clients on notice that any tax advice isn't to be used to avoid penalties under the Internal Revenue Code. It also informed clients that they weren't to give the advice to third parties. See Kelly Phillips Erb, A Reminder to Ditch the Disclaimer This Tax Season, Forbes (Jan. 11 2015), at

Attorneys that never did tax work likely never needed to use the disclaimer - yet many added it to their email footer anyway. This is most likely the result of not understanding the rule, plus a healthy dose of "everyone is doing it."

Time to revisit your email signatures

Irrelevant warnings make it even less likely that clients will heed email disclaimers. The signal is lost in the noise of the footer.

Mark C. Palmer, professionalism counsel for the Illinois Supreme Court Commission on Professionalism, notes that many lawyers have been using this and other disclaimers regardless of the content of the email. He suggests that attorneys take the time to create various email signatures for varying types of communications, "even if it is as simple as one for personal and one for business correspondence."

While disclaimers that have nothing to do with the content or purpose of the email are pointless noise, using the Circular 230 disclaimer can actually get you a cease and desist letter from the IRS OPR. Palmer notes, however, that attorneys who represent individuals before the IRS (as defined in the regulations) shouldn't completely forego any disclaimer regarding tax advice. He suggests a revised disclaimer that directly cites to IRS Circular 230, §10.37 without implying or stating that it is a requirement of the regulations or the IRS.

Regardless of your practice area, it's a good idea to revisit your email signatures, says Palmer. It's one part of an overall organizational review. "[W]ith electronic case filing throughout the majority of Illinois courts and counties, it is a great time for attorneys and staff to conduct some process mapping for how their office functions for various tasks. Pause to evaluate every step of how you serve your clients from the moment they walk in the door to the time their case file is closed."

Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.