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Q2 Newsletter
 June 2013
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(303) 333-9810

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Practice areas




Criminal Defense 

Election Law 

Employment Law 

Family Law 


Government Affairs 

International Transactions 

Land Use and Zoning 

Liquor Licensing 


Personal Injury 

Real Estate 

Tax and Estate Law 



Lara M. Baker  

 Michael C. Bullock  

Daniel K. Calisher

Christopher P. Carrington

David S. Canter

David J. Dansky

Jennifer G. Feingold

Daniel S. Foster 

David Wm. Foster  

Daniel J. Garfield 

Michael J. Gates 

Robert G. Graham 

Lorna H. Horton

Elliott R. Husney

Evan J. Husney

Lindsay N. Hutchinson

Jerri L. Jenkins 

Katharine A. Jensen

Lawrence G. Katz  

Chandler Kelley  

Gary Lozow 

Laura M. Martinez 

Michael G. Milstein 

Marcy M. Ongert 

Brian C. Proffitt 

Chip G. Schoneberger 

Steven M. Weiser 



:: (303) 333-9810

Dear Friends,


It appears the heat of Summer has finally arrived and with it the annual forest fire season.  Unfortunately, some of our friends and neighbors have already felt the effects that the latest tragic fire in the Black Forest, south of Denver, has had.  Many have had to evacuate their neighborhoods and some have lost their homes or other property to the fire. We share our deepest sympathies to those who have lost so much in these fires, and hope for their quick recovery. 


When these types of tragedies occur, it is a good time to confirm that your assets are properly protected.  Make sure you have proper insurance on your home and personal belongings and update your policies, if necessary.  Obviously, some things can never be replaced, such as photographs and family heirlooms, but for those things that can be replaced, having adequate insurance can make all the difference in the world when rebuilding your lives after a natural disaster.  Additionally, if you are renting out your property, it is important that the property be held in a separate entity, in order to limit your personal liability, and that your lease requires your renters to obtain their own insurance for their belongings, or you could end up having to reimburse them for their losses, in addition to your own.


We would also like to welcome back our newest attorney, Chris Carrington, who has returned to our firm after practicing law at another firm for the past year.


All of us at Foster, Graham, Milstein & Calisher wish you a safe and happy Summer.       





Very Truly Yours,

Bob Graham



Bob signature



--Bob Graham
, Partner

FGMC Briefs

*  We are happy to inform everyone that we are currently goose free - they moved to the Cherry Creek a day after the chicks hatched.  
* Lara Marks Baker was named a "Top 40 Under 40" again this year by the National Trial Lawyers Association. It is invitation only and extended exclusively to those trial lawyers practicing civil plaintiff and/or criminal defense law. Invitees must exemplify superior qualifications, trial results and leadership as a young lawyer under the age of 40. Congratulations Lara!


* Please join us in welcoming (back) Christopher P. Carrington as Senior Counsel. 

Chris was an attorney with our firm for five years before leaving to join a national firm's financial services practice.  Chris's practice will continue to focus on the financial industry and, specifically, the secondary mortgage market, but will also include commercial litigation, real-estate matters, fraud and criminal-related disputes, and adversarial proceedings in bankruptcy.  Chris has appeared before federal courts across the country, from the Southern District of New York to the Central District of California.  In 2012, the National Trial Lawyer's Organization recognized Chris as one of Colorado's "Top 40 Trial Attorneys Under 40."  In 2013, Super Lawyers selected Chris as Rising Star in civil litigation and criminal defense (but Chris claims that he will not be satisfied until he acquires the coveted and elusive "Super Duper Lawyer" award).



Steven Weiser is teaching International Taxation at CU Denver's graduate business school this summer.  This is the ninth year Steven has taught this summer course.  If you have any interest in attending a class on a particular topic please contact Steven.  Also, after years away from the court Steven has been

working very hard on his basketball game and recently had a tryout with the NBA's New York Knicks.  Then Steven woke up.
* Senior Counsel Dan Garfield moderated a panel presentation at FGMC on June 26 for 15 owners of small- and medium-sized business owners as part of a Summer Business Series.  The Series consists of three standalone breakfasts focused on the SALES, MARKETING, LEGAL, FINANCIAL, TAX, EMPLOYEE RELATIONS and REGULATORY issues effecting small and middle-market businesses today.   The subject of the first panel was "Achieving growth - Identifying new opportunities and avoiding the biggest mistakes business owners make."  Other speakers on the panel were Christina Griggs of Gemsbok Consulting, Dean Isaacs of Vantage Group, and Wade Olson of DC & Associates.  The second and third panels are scheduled for July 23 ("Building your business by attracting and retaining top talent.") and September 12 ("The critical steps for preparing for a successful exit.").  If you are a business owner and would like to attend, please contact Dan Garfield at dgarfield@fostergraham.com or 303-333-9810.


* Douglas J. Striker, COO, has joined the Board of Directors of the Mile High Chapter of the Association of Legal Administrators and is the Chair of the Publicity Committee.
Katharine Jensen

The American Rule: Attorney's Fees in Colorado

By Katharine A. Jensen


 While FGMC represents a diverse group of clients, our attorneys tend to hear some of the same kind of questions.  Perhaps the most common question asked is "if I win, doesn't the other side have to pay my attorney's fees?"

It is a common misconception that attorney's fees are automatically awarded to the successor at the completion of a case.  Litigants often feel that a "win" at trial is representative of the fact that they should not have had to proceed to litigation in the first place, and should be compensated accordingly.  While this notion is understandable, courts do not award attorney's fees to a party simply because it is the fair or just thing to do.  Rather, in most cases, an award of attorney's fees in Colorado follows what we colloquial refer to as "the American Rule."

"The American Rule" provides that each party to a case is responsible for his or her own attorney's fees and costs, unless a statute or express contractual provision states otherwise. 

See, e.g.,Alyeska Pipeline Svc. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975).  


Often, an award of attorney's fees can be found in a contract for services in the event that the service provider is forced to engage in collection proceedings.  Other times, such an award is allowed by statute, such as C.R.S. §14-10-119, which allows the court to make an award of attorney's fees to either party in a divorce proceeding after considering the financial position of both parties.  However, it important to understand that without such an express provision for attorney's fees, both parties are expected to pay for their own attorney's fees regardless of the result of the case. If you are considering participating in any kind of litigation, it is important to consult with an attorney who will be able to help you 


Jerri Jenkins
The Colorado Oil & Gas Conversation Commission and What it May Mean for You,
by Jerri L. Jenkins



The Colorado Oil and Gas Conservation Commission (COGCC) regulates oil and gas exploration operations in Colorado.  The COGCC has enacted rules with which oil and gas operators must comply when drilling and operating oil and gas wells in Colorado.  There are COGCC rules that prohibit operators from drilling oil and gas wells within specified distances from existing buildings, residential dwellings, and outside activity areas, these restricted areas are called "Setbacks" in the COGCC rules.  In February, 2013, the COGCC modified its rules to increase some of the Setbacks that restrict development of oil and gas wells near existing buildings, residential dwellings, and outside activity areas.  These changes go into effect on July 1, 2013.  If you own property in Colorado upon which improvements have been constructed or property that you intend to develop in the future, it is important for you to be aware of the changes to the COGCC Setback rules

The following are the major changes to the COGCC rules regarding Setbacks:

  • Designated Setback Locations for Oil and Gas Locations will be 500 feet from building units, 1,000 feet from High Occupancy Building Units, and 350 feet from Designated Outside Activity Areas.
  • Waivers are required from Building Unit owners within 500 feet of a proposed Oil and Gas Location in Urban Mitigation Areas. If waivers cannot be obtained, the operator can seek a variance from the director, and if not granted, have a hearing before the Commission.
  • Rule 604(b)(2) exempts Existing Surface Use Agreements or Site Specific Development Plans.
  • Rule 604(b)(3) exempts surface development after August 1, 2013 pursuant to a Surface Use Agreement or Site Specific Development Plan.

The capitalized words used above are defined in the COGCC rules.  You can find the COGCC rules on the COGCC website at http://cogcc.state.co.us/.  We would be happy to assist you with any questions you have regarding the changes to the COGCC rules.  


A (Very) Brief Primer on Self-Directed IRAs

by Steven M. Weiser, Esq.



Most people are familiar with Individual Retirement Accounts (IRAs), those handy retirement tools that allow taxpayers to sock away their savings tax-free (or nearly tax-free).  With a "traditional" IRA amounts earned in the financial account are not taxed until distributions are made.  Contributions to a traditional IRA are often made using pre-tax dollars (meaning the amounts deposited are excluded from the taxpayer's taxable income in the year of contribution).  A more recent variant of the IRA is the "Roth IRA" which uses after-tax dollars for contributions, but allows users to avoid income taxes for qualified distributions (in effect, the earnings associated with these accounts are never taxed even upon distribution).


However, the lesser-known "self-directed IRA" (which can also be a traditional or Roth IRA) has actually been around since 1974, when the IRS first published its framework for all IRAs.  A self-directed IRA gives the account holder more investment options than traditional IRAs.  In fact, it's easier to speak about what a self-directed IRA cannot invest in, rather than what it can invest in.  Some taxpayers are familiar with self-directed IRAs promoted by large financial institutions that give investors the opportunity to choose a variety of marketable securities to invest in.  However, under federal tax laws the only investments an IRA can't hold are life insurance contracts and collectibles.  This means real estate, precious metals, secured and unsecured promissory notes, oil and gas interests, tax liens, and just about any other "alternative" investments can be held in an IRA.


One difficulty my clients often face in setting up a self-directed IRA is finding a custodian/trustee to manage the IRA.  Your typical large financial institutions don't have the infrastructure in place to handle IRAs that hold alternative investments.  One of my roles as a client's advisor is to assist people in locating an institution capable of managing the self-directed IRA account.  Often, we can locate an institution that not only serves as custodian of record for the investment, but also performs all administrative and bookkeeping functions associated with the retirement account.  Other times the custodian utilizes a third party to provide administrative and bookkeeping services.


A common complaint I hear from clients concerns the costs involved in establishing a self-directed IRA.  Generally, the trustee of a self-directed IRA has larger up-front costs that must be paid to establish the IRA.  Additional costs may be incurred with regard to administrative services.  However, when you consider the "hidden" costs associated with IRAs managed by large financial institutions the self-directed IRA may actually be less expenses.  For example, a large financial institution may charge no fee for establishing an IRA, but may charge a fee every time marketable securities are bought and sold.  When choosing a custodian it's important not only to consider costs, but also that the custodian has a program suitable for the type of asset an individual would like to invest in.


Perhaps the most important consideration with respect to self-directed IRAs is ensuring that a prohibited transaction does not occur.  In general, an IRA may not engage in a prohibited transaction with the following "disqualified persons:"

  • the IRA owner,
  • the IRA owner's spouse, descendants and ascendants (parents, grandparents, etc.),
  • spouses of the IRA owner's descendants,
  • certain fiduciaries (CPAs, attorneys, etc.),
  • other retirement plans or accounts held by disqualified persons, and
  • any entity that these people own or control.

Prohibited transactions include the following transactions between the IRA owner and her IRA:

  • sales, exchanges and leasing of property,
  • extending credit,
  • furnishing goods, services or facilities,
  • having personal use of IRA assets, and
  • pledging IRA assets to secure a personal loan.

These rules are essentially designed to prohibit persons from obtaining a non-retirement benefit from their IRA, and to provide or obtain impermissible tax-advantaged benefits from family members.  Under these rules an IRA cannot allow its owner to use beach-front property owned by the IRA regardless of whether the IRA owner pays fair market rent.  A violation of the prohibited transaction rules can be catastrophic - the IRA can lose its tax-preferred status and the value of all IRA assets can become taxable in a single year.  In addition, if the IRS discovers the existence of a prohibited transaction years after it occurred huge penalties and interest charges may also be assessed.


The rules concerning IRAs are not surprisingly complex, particularly with regard to the prohibited transaction laws.  Although a self-directed IRA (traditional or Roth) can be incredibly beneficial, particularly to individuals inclined to invest in alternative investments such as real estate, careful planning and the advice of a competent tax professional is strongly encouraged.


If you have any questions about establishing a self-directed IRA, or any other tax or estate planning matter, you may contact Steven Weiser at 303-333-9810.

Brian Proffitt
FGMC & Brian Proffitt would like to congratulate our new liquor licensed establishments:


Hard Rock Café of Empire Colorado

18 E. Park Avenue

Empire, CO 80438



Fresh Nail, Wax & Dry Bar

8000 E. Belleview Avenue, Ste. B-20

Greenwood Village, CO 80111



BJ's Restaurant & Brewhouse

2670 E. Harmony Road

Fort Collins, CO 80525



Red Robin's Burger Works

1190C Auraria Parkway

Denver, CO 80204



Drake's Haus

2900 Baseline Road, Ste. 3

Boulder, CO 80303