          United States Court of Appeals
                        For the First Circuit

No. 02-1317



      ESTATE OF MURRAY KEATINGE, CECELIA COLE as Executrix,

                         Plaintiff, Appellee,


                                  v.


              ELIZABETH H. BIDDLE, STROUT & PAYSON, P.A.,

                        Defendants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE
           [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

                          Boudin, Chief Judge,
                 Torruella and Lynch, Circuit Judges.


          James M. Bowie with whom Robert C. Hatch and Thompson &
Bowie, LLP were on brief, for appellants.
          Lee H. Bals with whom Marcus, Clegg & Mistretta, P.A. was
on brief, for appellee.



                           November 1, 2002
              LYNCH, Circuit Judge.            A federal jury in Maine found

that a lawyer and her law firm had simultaneously represented

Murray Keatinge and another person with interests adverse to Murray

(his son Kent) and then compounded the problem by suing Murray on

behalf of Kent.      For this breach of an attorney's duty of loyalty

and care, the jury awarded damages of $660,000.                   The defense of

attorney Elizabeth Biddle and the firm of Strout & Payson was that

they had never represented Murray Keatinge; rather, they had only

represented Kent: they had represented Kent in the exercise of the

power of attorney granted by Murray, in both the sale of Murray's

house   and    the   management     of     Murray's     business.      Defendants

contended that an attorney's representation of the holder of a

power   of     attorney      can   never       establish     an   attorney-client

relationship with the grantor of that power.

              The Maine Law Court, in an answer to a question certified

after the jury rendered this verdict, disposed of that contention

by holding that the issue of the existence of an attorney-client

relationship is one of fact.             There is no rule in Maine that an

attorney     in   such   a   position    is     never   in   an   attorney-client

relationship with the grantor of the power and no rule that such an

attorney is always in an attorney-client relationship.                  Estate of

Keatinge v. Biddle, 789 A.2d 1271, 1276 (Me. 2002).

              On appeal the defendants now argue that the trial court's

earlier jury instruction, given without the benefit of the Law


                                         -2-
Court's later opinion, was potentially misleading to the jury.           We

too have concerns about the instruction.            But that gives the

defendants no remedy: they failed to preserve the issue as required

by Fed. R. Civ. P. 51, they do not meet the plain error criteria,

and we do not think a corrected jury instruction would have changed

the outcome.       Defendants also argue that they were entitled to

certain jury instructions which they did request but which were not

given.    The instructions requested would not have been appropriate

on the facts of this case and were quite properly rejected.              We

affirm.

                                     I.

            We take the facts in the light most favorable to the

verdict, save for a neutral recitation of whether the plaintiff's

evidence warranted the instructions requested. See Gray v. Genlyte

Group, Inc., 289 F.3d 128, 131 (1st Cir. 2002) (evidence offered by

either side may be pertinent to assessing the appropriateness of

jury instructions).

            The story of this ill-fated triangle -- father, son, and

lawyer -- reaches back in time.           Murray Keatinge and Elisabeth

Keatinge married and had a son, Kent.          During the marriage they

acquired a house, Greyrocks, in Camden, Maine in 1985.            Two days

before she died in 1990, Elisabeth made a will, naming her husband

executor,    and   created   the   Keatinge   Revocable   Trust   with   her

husband.    On her death, her half interest in Greyrocks poured into


                                    -3-
the   Revocable   Trust.      In   turn,      in   1996,   Murray    transferred

Elisabeth's interest in Greyrocks to a Marital Trust of which he

was Trustee.      The Marital Trust, of which Murray was the sole

beneficiary, was set up under the Revocable Trust.                There was also

another trust under the Revocable Trust: the Family Trust, whose

sole beneficiary was Kent. Under the terms of the Revocable Trust,

Murray, as Trustee, was obligated to fund the Family Trust in the

amount of $600,000 within six months of the death of the first of

the grantors of the Revocable Trust (i.e., Elisabeth).                He did not

do so.

              It is undisputed that Murray owned at least half of

Greyrocks.      In any event, Greyrocks was held by Murray both

individually and as Trustee of the Revocable Trust (Marital Trust).

The jury could have concluded that Murray was the sole owner of

Greyrocks.

             Murray   also   had   a   business,     the   Norumbega       Bed   and

Breakfast (B&B).      As of at least early 1998, half of the record

title was held by Murray personally and half was held by the

Revocable Trust (Marital Trust).1            Before late 1997, Kent had been

involved in the management of the B&B.

             In August 1997, Biddle brought an action in the Maine

Probate   Court   seeking    to    put   Murray     and    his   assets    into    a



      1
      Biddle later took the position                that   Kent     also   had    an
ownership interest in the B&B.

                                       -4-
guardianship and conservatorship.         Biddle had been retained to do

so by Kent, who said he was concerned about the oversight of his

father's health care and businesses after his father had multiple

by-pass   surgery.    Kent   was    appointed   temporary    guardian   and

conservator September 3, 1997.         During that proceeding, Biddle

necessarily familiarized herself with Murray's assets. The purpose

of the conservatorship was to protect the estate and assets of the

allegedly incapacitated person, here Murray, as well as to protect

Kent's interest in his mother's estate, administered by Murray.

Me. Rev. Stat. Ann. tit. 18-A, § 5-401 (2001). Murray, represented

by different counsel, opposed Kent's petition for conservatorship

on September 12, 1997.       Murray said he opposed appointment of

either a guardian or conservator and that even if there were an

emergency, he had given Cecelia Cole a health care power of

attorney and his businesses were run by competent managers.              He

also said that Kent had a conflict of interest which would render

him inappropriate to be guardian or conservator and that Kent's

temporary    appointment   should    be    terminated.      Indeed,   Kent,

represented by Attorney Clark Byam (not at Strout & Payson), had

just threatened to sue to remove Murray as a trustee of a family

trust.    In the fall of 1997, Kent had Biddle withdraw the petition

after a resolution was apparently worked out by agreement.               On

November 29, 1997, apparently as part of the agreement, Murray

appointed Kent to be a co-trustee of the Revocable Trust.             Biddle


                                    -5-
also       asked   that   her   firm's    fees    for   the   work   done   on   the

conservatorship be paid out of Murray's estate.2

               Pursuant to the resolution of the probate matter, Biddle

prepared a power of attorney for Murray to execute, authorizing

Kent to exercise certain powers.                 This work apparently was also

part of the fee application.             Murray executed the durable power of

attorney on November 28, 1997.                   It gave Kent full power and

authority to conduct Murray's business and affairs. Included among

these was the power to borrow money, which Kent ultimately did

employ.       Kent's authority under the power of attorney went beyond

the powers he had previously held while helping to manage the B&B.

There are limits to a durable power of attorney.               The holder is not

entitled to use the grantor's money or property for his own benefit

or to make gifts to himself or others unless the power of attorney

so specifies.       Id. § 5-508(b).       This power of attorney did not give

Kent such authority.

               That power of attorney was replaced on March 10, 1998 by

a new durable power of attorney drafted by another lawyer.                  Though

broadly consistent with the old power of attorney, the new document

provided much more detail regarding the scope of Kent's authority.

It specifically empowered Kent to use his father's income and

principal for Murray's support and to conduct Murray's estate



       2
     Biddle also asked for a reduction in the fees for counsel
hired by Murray.

                                          -6-
planning (in conformance with his father's wishes).     At the same

time, it specifically forbade Kent from making transfers to himself

not necessary for his health, education, support, or maintenance;

receiving compensation for services rendered under the power of

attorney; or disregarding certain provisions of any living will or

related document Murray executed.      Murray also executed a simple

will on March 10, 1998.

          Kent called Murray's lawyer, James Elliott, who had

drafted the new durable power of attorney and will and asked him to

send both documents to Biddle.     On March 17, 1998, Elliott sent

them to Biddle with a cover letter saying that Murray wished only

to have a simple will in effect while he gave thought to a more

extensive estate plan.    Elliot also wrote that he assumed Biddle

would handle any further estate planning for Murray and that she

should advise him if that was not the case.     Biddle did not reply

other than to acknowledge receipt. She did retain the originals of

the second durable power of attorney and the will in her files.

          Using the first power of attorney, Kent retained Biddle

to do work regarding the B&B and Greyrocks.      That work was done

from November 1997 to September 1998.        In March 1998, Biddle

analyzed the financial situation of the B&B in order to secure a

line of credit for it from the Gardner Savings Institution.      The

equity line of credit was to be secured by a third mortgage on both

the B&B and Greyrocks.    Biddle worked on this project with James


                                 -7-
Ayers, an accountant whom Kent had hired in his capacity as holder

of the power of attorney, to do work for the B&B.                       It can be

inferred that from the bank's point of view, Biddle's work on the

B&B was being performed for Murray, and not for Kent in his own

capacity.      In    early   1998   Biddle     also   handled     two   employment

questions and a liquor license issue for the B&B.

            On May 11, the issue of the $600,000 meant to be put into

the Family Trust for Kent's benefit was apparently addressed when

Biddle proposed, by letter to Murray's lawyer, that the Revocable

Trust execute a note and mortgage to the Family Trust for $600,000

secured by a mortgage on Greyrocks and the B&B.                   The letter said

she was acting for Kent Keatinge and asked that Murray execute the

note, mortgage,       and    an   affidavit    that   he    was   represented   by

separate counsel.           Murray did so and his lawyer returned the

documents on June 1, 1998.          Murray's lawyer had earlier expressed

to Biddle his concerns about the facts that Kent had been appointed

co-trustee while the conservatorship for Murray was pending and

that Biddle had unofficially raised doubts about the Marital Trust.

            In July 1998 Biddle restructured the B&B to transfer its

ownership into a new subchapter S corporation, E.B. Hammond, which

she had incorporated.         Both Murray and Kent appear to have been

shareholders    of    E.B.    Hammond.        It   also    appears   that   Biddle

structured matters so that Murray owned half of E.B. Hammond in one

of his capacities and Kent, in some capacity, owned the other half.


                                       -8-
One of Murray's theories in the case was that this restructuring

was not necessary for the management of the B&B and was done in

order to take away Murray's ownership interest.           It was Biddle's

intent that Murray would transfer his ownership interest in the B&B

to E.B. Hammond and that E.B. Hammond would own the B&B.

          Indeed,    in    an   August    13,   1998   memorandum,   Biddle

concluded that all of Elisabeth Keatinge's estate should have gone

to the Family Trust and none to the Marital Trust.               She also

concluded that the transfer of Elisabeth's half interest to the

Marital Trust was invalid.          These conclusions were obviously

contrary to Murray's interests.          Based on these conclusions, she

named Murray and the three trusts as the grantors of Greyrocks in

the Warranty Deed.        She did not call to Murray's attention the

issue on which there was conflict.

          The bulk of plaintiff's complaint dealt with Biddle's

handling of the sale of Greyrocks.          Greyrocks and Norumbega were

cross-collateralized through Gardner Savings Institution.3           Biddle

had represented to the Bank that Murray would invest $110,000 of

the proceeds from Greyrocks in the B&B.         Biddle also told the Bank

that "Murray and Kent" are entitled to these proceeds from the sale

of Greyrocks in equal shares, but did not copy Murray on the

letter.   A jury could find that Murray had not authorized that



     3
     Biddle did send a letter to the Bank saying she was
appearing only on behalf of Kent Keatinge.

                                   -9-
representation or the transfer of the $110,000 from the Greyrocks

proceeds.    Biddle also represented to the Bank that Murray needed

some of the proceeds to pay for his retirement and capital gains

taxes.

            There is no dispute that Murray owned at least half of

Greyrocks outright at the time of the sale.          Indeed, at the

September 1, 1998 closing, Biddle signed in the space for the

seller's signature as follows: "Elizabeth Biddle, attorney-in-fact

for Murray Keatinge." She communicated with Murray both before and

after the sale.     Before the sale she sent him documents for him to

sign and return to her.    He did so.   After the sale, Biddle spoke

with Murray about the bill -- he questioned her over the telephone

about the closing statement and its legal fees and the accounting

statement.     Murray asked for an itemized statement; Biddle never

sent one.     This was the only direct contact between Biddle and

Murray.

             There was reason for Murray to be concerned about the

bill.     Biddle had taken $14,680 from the closing proceeds for her

legal fees.      But no more than $6,800 of the legal fees were

attributable to the closing.     The discrepancy is not explained by

work done for the B&B; that was billed separately.      The bill did

include fees for work directly against Murray's interests:      that

is, work for legal research on whether Murray had adequately funded




                                 -10-
a trust established for Kent's benefit, work going back to March

1998.

          The conflict of interests between Kent and Murray was

made explicit by Biddle in a September 29, 1998 letter to Murray,

after the closing.   The letter said that Biddle had represented

Kent since the guardianship proceedings the prior summer and that

through this work and the sale of Greyrocks Biddle had become

familiar with Murray and Elisabeth's estate planning.     Murray,

Biddle wrote, had deprived Kent of the benefits he should have

received and Kent wanted to resolve the outstanding financial

issues between the two of them.

          Biddle, representing Kent, sued Murray in October 1998

in Superior Court in Maine on claims that Murray had failed as

trustee to adequately fund a trust established for Kent's benefit.

Biddle used information against Murray which she had obtained in

the course of the prior representation.

          That lawsuit was settled.   As part of the settlement,

Murray gave up his ownership in E.B. Hammond, which owned the B&B;

some of Murray's other property was transferred to Kent; Murray

assumed any tax liability from the sale of Greyrocks; and Murray

and Kent executed a mutual release.   The lawsuit was apparently,

for Murray, the last straw which led to the federal litigation.

The costs of that settlement and the attorneys fees paid to defend




                              -11-
himself became a major component of Murray's damages claim in the

federal litigation.

                                       II.

            Murray brought the federal litigation on October 19,

1999, under the court's diversity jurisdiction. Discovery was

completed, including Murray's deposition, when Murray died on

August 1, 2000.     His estate subsequently became the plaintiff.

            The   complaint    based    its   legal   malpractice   claim   on

allegations that Biddle did not disclose to Murray her conflict of

interest;     diverted   for   nefarious      reasons   proceeds    from    the

Greyrocks closing; and failed adequately to represent Murray's

interests.4    Ultimately, the jury would be instructed that if an


     4
      Specifically, plaintiff made the following allegations: (1)
that Biddle failed to disclose to Murray that she should not
represent his interests during the sale of Greyrocks since she was
simultaneously advising Kent as to claims he might have against
Murray for Murray's performance of his duties as a trustee under
the Revocable Trust; (2) that without Murray's consent Biddle
prepared a proposed deed and real estate tax transfer declaration
which included as grantors entities which had no ownership interest
in Greyrocks; (3) that Biddle escrowed $329,969.17 with the Gardner
Savings Institution without authority from Murray, and provided for
the account to be equally divided between Murray Keatinge and the
Keatinge Family Trust (of which Kent was a beneficiary); (4) that
Biddle permitted some of the escrow amounts to be paid to people
other than Murray; (5) that this diversion of the proceeds from
Greyrock was done for nefarious reasons -- diverting monies to
Kent, depriving Murray of sums he would need to defend himself
against the lawsuit that Kent was about to bring, and increasing
their own legal fees in that litigation; (6) that Biddle
misdirected some $10,000 of the closing proceeds to pay for work
done by accountants that was unrelated to the Greyrocks sale and
that was for Kent's benefit, adverse to Murray's interests; (7)
that Murray had never agreed to invest $110,000 from Greyrocks in
the B&B and he could not recover that sum; and (8) that Biddle

                                       -12-
attorney-client relationship existed between Murray and Biddle,

then there was a breach of Biddle's duties to Murray.   There is no

question that there was a breach of the duty of loyalty and

due care if an attorney-client relationship existed between

Murray and Biddle.    There is also no claim about damages in

this appeal.

          The trial took four days.    After deliberations, the jury

returned a verdict finding that the defendants were in breach of

their duties to Murray and that the breach had caused Murray

$660,000 in total damages.   The jury also found that Murray had not

negligently caused his damages.

          After the verdict, on a motion by defendants, the federal

district court certified questions to the Maine Law Court.5     The


failed to adequately represent Murray against Kent's contrary
interests.
     5
      The judge certified the following three questions to the
Maine Law Court:
               A. When the holder of a power of attorney hires a
          lawyer concerning matters within the scope of the power,
          can the engagement ever result in an attorney-client
          relationship between the hired lawyer and the grantor of
          the power?
               B.    If yes, is there any change in the proof
          necessary to demonstrate the existence of such an
          attorney-client relationship? Specifically, in Board of
          Overseers of the Bar v. Mangan, 763 A.2d 1189 (Me. 2001),
          the Law Court adopted the formulation
              that an attorney-client relationship is created when
              (1) a person seeks advice or assistance from an
              attorney, (2) the advice or assistance sought
              pertains   to    matters   within    the   attorney's
              professional competence, and (3) the attorney

                                -13-
Law Court replied:

          In ordinary circumstances, when the holder of a power of
          attorney retains counsel to assist him in fulfilling his
          duties, the lawyer has an attorney-client relationship
          with the holder only. In order to effectively exercise
          the powers granted to him, the holder of a power of
          attorney may often need to retain counsel. For example,
          the holder of a power of attorney is not authorized to
          appear pro se on behalf of the grantor.

          Thus, the mere retention of counsel by the holder does
          not by itself create an attorney-client relationship
          between the attorney and the grantor. There must be some
          other agreement or arrangement to create the separate
          attorney-client relationship between the attorney and the
          grantor.   To hold otherwise would leave the attorney
          hired to represent the holder of a power of attorney in
          the untenable position of being subject to ill-defined
          professional responsibilities and create the reality of
          conflicting loyalties.

Estate of Keatinge, 789 A.2d at 1275 (internal citations omitted).

          The district court then rejected the motion for a new

trial and for judgment as a matter of law, holding:


              expressly or impliedly agrees to give or actually
              gives the desired advice or assistance.
          Id. at 1192-93 (citations and quotation marks omitted).
          When the holder of the power engages the lawyer, is it
          appropriate to modify the first of the three requirements
          so as not to require the grantor personally to seek the
          advice or assistance, but rather to require that the
          lawyer be asked for advice or assistance "on behalf of
          the grantor"?
               C. With respect to the third requirement taken from
          Mangan, is the Law Court disposed to adopt the
          Restatement (Third) of the Law Governing Lawyers
          § 14(1)(b) (1998) alternative formulation that it is
          sufficient on that element if the lawyers failed to
          manifest lack of consent to provide legal services when
          they knew or reasonably should have known that the
          grantor reasonably relied on them to provide the
          services.


                               -14-
           I instructed the jury that they could find an attorney-
           client relationship only if they found, among other
           things, that the lawyer(s) "knew or should have known
           that Murray Keatinge was relying upon them for legal
           counsel."   On the evidence, the jury did not have to
           reach that conclusion, but it certainly could.     Among
           other things, Murray Keatinge had talked directly to
           Attorney Biddle about the size of her bill, and Attorney
           Biddle had direct correspondence with him in connection
           with a real estate closing.

Keatinge v. Biddle, 188 F. Supp. 2d 3, 4 (D. Me. 2002) (order).

                                III.

           Because this appeal focuses on the jury instructions

given, we initially describe them and the colloquy and objections

made.   The court instructed:

           On the question whether Murray Keatinge had an
           attorney/client relationship with the lawyers, the
           plaintiff Cecelia Cole bears the burden of proof. To
           proceed, she must show each of the following three things
           by a preponderance of the evidence:

                  (a) That the lawyers were asked for advice or
                  assistance on behalf of Murray Keatinge;

                  (b)   That the advice or assistance related to
                  legal matters;

                  (c)   That the lawyers expressly or impliedly
                  agreed to give the desired advice or assistance
                  on behalf of Murray Keatinge, or failed to
                  demonstrate that they did not agree when they
                  knew or reasonably should have known that Murray
                  Keatinge reasonably relied on them to provide the
                  services. That is, Cecelia Cole must show that
                  Elizabeth Biddle and/or Strout & Payson knew or
                  should have known that Murray Keatinge was
                  relying upon them for legal counsel.

           You should consider all the facts and circumstances. An
           attorney/client relationship may be created expressly, or
           it may be implied from the conduct of the parties.


                                -15-
This was a reworking of the standard set by Board of Overseers of

the Bar v. Mangan, 763 A.2d 1189 (Me. 2001).

           Though neither party contested the relevance of the

Mangan   standard,    both   parties     objected   to   the   court's    jury

instructions.    The plaintiff objected that the court should have

delivered proposed jury instructions providing, first, that an

attorney retained by a guardian or conservator owes a fiduciary

duty to the ward as well as to the guardian and, second, that

counsel to the holder of a power of attorney represents and owes a

duty of care to the grantor of the power of attorney (as well as to

the   holder).       The   defendants    objected   that   the    court      had

effectively instructed the jury that the holder's counsel always

has a relationship with the grantor -- when, in fact, it should

have instructed      the   jury   that   holder's   counsel    never   has    an

attorney-client relationship with the grantor.

A.    The "On Behalf Of" Instruction

           The defendants argue that the jury instruction as given:

(1) permitted the jury to find that an attorney asked to provide

representation to a holder of a power of attorney would, by that

fact, create an attorney-client relationship, because by definition

the holder is usually acting for the benefit of the grantor of the

power of attorney; and (2) did not tell the jury that mere

retention of counsel by the holder does not by itself create an

attorney-client relationship with the grantor.             This, they say,


                                    -16-
contravenes the Law Court's holding that the mere retention of

counsel by the holder does not by itself create an attorney-client

relationship.    Estate of Keatinge, 789 A.2d at 1275-76.   We agree

that the instruction given had some potential to be misleading on

certain facts.

          Nonetheless, Biddle's attorney failed to preserve his

objection to the trial judge's jury instructions.     "The governing

rule provides that a party cannot assign as error the giving of or

failure to give an instruction 'unless that party objects thereto

before the jury retires to consider its verdict, stating distinctly

the matter objected to and the grounds of the objection.'     Fed. R.

Civ. P. 51."    Genlyte, 289 F.3d at 133-34.   The objection "must be

sufficiently specific to bring into focus the precise nature of the

alleged error."    Cyr v. B. Offen & Co., 501 F.2d 1145, 1155 (1st

Cir. 1974) (quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1942)).

The purpose of this requirement is to help trial courts correct

errors in jury instructions, Broderick v. Harvey, 252 F.2d 274, 276

(1st Cir. 1958), -- and thus to avoid unnecessary appeals.

          To maximize the likelihood that errors can be corrected

at the trial court level, parties objecting to a trial judge's

instruction must not only identify the error but also "proffer a

correct instruction or [otherwise] explain how the alleged error in

the charge could be corrected." Scarfo v. Cabletron Sys., Inc., 54

F.3d 931, 944 (1st Cir. 1995); see id. at 946 ("In general,


                                 -17-
objections to a trial judge's charge to the jury must be clear

enough and explicit enough to tell the trial judge what the party

wishes the trial judge to say in order to correct the alleged

error."); Linn v. Andover Newton Theological Sch., Inc., 874 F.2d

1, 5 (1st Cir. 1989) ("If there is a problem with the instructions,

the judge must be told precisely what the problem is, and as

importantly,     what   the    attorney   would         consider    a   satisfactory

cure.").   The proposed correction must not substantially overstate

the law in favor of the objecting party.                Parker v. City of Nashua,

76 F.3d 9, 12 (1st Cir. 1996).                It is this latter part of the

distinctness requirement (the proffering of a satisfactory cure)

which defendants do not meet.

            After the judge finished instructing the jury, Biddle's

attorney objected to the formulation of the first prong of the

standard for determining whether an attorney-client relationship

exists.    "By   leaving      that    prong    as   phrased,        the   court    has

effectively held and instructed the jury that representation [by an

attorney] of a representative [i.e., the holder of the power of

attorney] is representation of the protected party [i.e., the

grantor]. Because necessarily, the representative [or holder] is

acting on behalf of the protected party [or grantor]."                    But Biddle

did not ask that the court instruct that there was no rule that an

attorney   retained     by    the    holder    of   a    power     of   attorney   was

automatically in an attorney-client relationship with the grantor


                                       -18-
of a power of attorney.    Rather, Biddle's position throughout was

that an attorney-client relationship can never arise under these

circumstances. Biddle's argument was that under Mangan, Murray had

to directly ask Biddle for the service.   And that argument is quite

wrong; further, it did not distinctly notify the court of the

argument Biddle now makes.     She then compounded the problem by

insisting that an instruction be given that when a representative

retains a lawyer, the client is the representative, and not the

party for whom the representative is working.

          Our view that defendants did not distinctly state the

view they now advance is reinforced by the trial judge's reaction.

The trial judge rejected defendants' objection, observing:

          [T]he defendant takes the . . . extreme . . . position
          that the client holder of the power is automatically the
          client only, and it cannot be the grantor.      I think
          that's also an incorrect statement of the law. And so
          I'm rejecting those particular objections.

                 . . . .

                 . . . Essentially, what the plaintiff has
          maintained here is that the grantor of a power of
          attorney is automatically the client of anybody the
          holder of the power consults at least in matters covered
          by the power.

                 And the defendant essentially contends that the
          grantor is never the client in such circumstances.
          Clearly   my  charge  has   rejected  both   of  these
          alternatives.

          The Maine Law Court's response to certified question one,

see Estate of Keatinge, 789 A.2d at 1275-76, confirms that the

district court judge correctly rejected this extreme position.

                                -19-
Defendants proposed a "cure" which was substantively wrong and in

doing so did not give the trial judge fair notice of the real

problem.

            In the absence of a properly preserved objection, this

court reviews the trial judge's jury instructions under the plain

error standard.          Genlyte, 289 F.3d at 134.         The party claiming

plain error is required to demonstrate "(1) that there was error,

(2) that it was plain, (3) that it likely altered the outcome, and

(4) that it was sufficiently fundamental to threaten the fairness

or integrity or public reputation of the judicial proceedings."

Id. (citing United States v. Olano, 507 U.S. 725, 735-36 (1993)).

            We agree that, as phrased, the portion of the instruction

given had the potential to mislead the jury into thinking that an

"always" per se rule existed.            Still, the error was not plain and

there are several reasons to think that the jury was not misled.

Particular formulations in jury instructions are viewed in context,

not in isolation.         Here, the jury was instructed that it had to

"consider    all    the     facts      and   circumstances,"   an     instruction

consistent with the fact-based approach to the existence of the

attorney-client      relationship        and    inconsistent   with    a    per   se

approach.    Further, there were numerous facts, apart from the

existence   of     the    power   of    attorney,   that   support    the   jury's

conclusion that an attorney-client relationship existed.                     It is

highly unlikely that the error in the district court judge's


                                         -20-
instruction    changed       the   outcome    of     the   case.      Under   the

circumstances, the plain error test is not met.

B.   The   Trial   Court's    Rejection      of    Defendants'     Proposed   Jury

Instructions

            Biddle also argues that the court erred by declining to

give appellant's proposed jury instructions.                Those instructions

would have further defined an attorney-client relationship in light

of Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1991).

            Specifically, the defendants requested that the court

advise the jury that the representation must have been sought

directly by Murray (Jury Instruction No. 2); that there are a

number of factors that are important to determining whether an

attorney/client relationship exists (No. 3); that the client's

subjective unspoken belief that an attorney was representing him is

insufficient to create an attorney-client relationship (No. 4);

that a client's belief must be objectively reasonable (No. 5); that

the attorney must be aware that the putative client was in fact

relying on the attorneys for legal counsel (No. 6); and that if a

person such as Murray were regularly obtaining legal assistance

from others, then it is a reasonable assumption on the part of the

defendants that Murray was receiving legal assistance about his

business activities from other counsel and not from the defendants

(No. 7).

            A refusal to give a particular instruction constitutes


                                      -21-
reversible error only if the requested instruction was (1) correct

as a matter of substantive law, (2) not substantially incorporated

into the charge as rendered, and (3) integral to an important point

in the case.      Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir.

1998).      The   district   court   should   refuse    a    request   for   an

instruction that states a legal holding which is not applicable to

the facts, even if it is otherwise correct.            See 9A C.A. Wright &

A.R. Miller, Federal Practice and Procedure § 2552 (2d ed. 2002).

We find no error.      The substance of many of the requests was in

fact given and some had the potential to mislead.            For example, the

substance of Requests Nos. 2 and 5 was given, Request No. 2 was

misleading, and Request No. 3 was given in the sense that the jury

was told to decide the issue on all of the facts.              Request No. 4

was misleading in that an attorney-client relationship may be

implied, and Request No. 6 was misleading in that it eliminated the

"should have known" portion of the test.        Request No. 7 is closer,

but it was within the discretion of the trial judge to decide that

under Maine law one factor should not be emphasized over others.

             As the district court noted, Sheinkopf's fact pattern is

dissimilar from the one at issue in this case.              In Sheinkopf, the

plaintiff sued an attorney's law firm after the joint venture in

which both men had invested turned sour.           927 F.2d at 1260-61,

1264-65.     The case did not involve a power of attorney.6            Biddle


     6
         Nor did it involve any of the situations that the district

                                     -22-
sought an instruction that more is required than an individual's

subjective belief that the person with whom he was dealing was his

lawyer;   the   belief,   Biddle    contended,   must   be   objectively

reasonable (No. 5).       This request derives from the portion of

Sheinkopf where the court explains that no reasonable person could

have objectively believed, on the facts of that case, that an

attorney-client relationship was created.        The district court was

well within its discretion in finding that the facts of the present

case did not warrant that specific instruction, where it had

already instructed that the jury should consider all the facts and

circumstances and that the lawyers must have expressly or impliedly

agreed to the representation.      Sheinkopf did not create a set of

one-size-fits-all jury instructions.

          The verdict is affirmed.        Costs are awarded against

defendants.




court in the present case described as giving rise to useful
analogies and parallels: a guardian-ward relationship; an agent-
principle relationship; an employee-corporation relationship; or an
executor- or trustee-beneficiary relationship. These are imperfect
analogies to be sure, but involve situations in which a client
hires a lawyer to help the client meet his legal responsibility to
a third person.

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