Why this engagement is its own category
Lawyer-to-lawyer engagements in Nevada have historically been treated as a flexible category, with practitioners using the labels “local counsel,” “co-counsel,” and “trial counsel” interchangeably. The labels are not interchangeable. Each describes a different allocation of responsibility, a different admission posture, and a different relationship with the client of record. The decision to engage one versus another is a tactical decision and a regulatory one at the same time.
Trial counsel, in the sense used on this site, is the engagement in which a Nevada-admitted attorney is brought into a matter specifically to try the case — not to babysit a pro hac vice admission, not to handle local discovery while the lead firm prepares for trial, but to carry the trial itself. The engaging firm typically remains lead counsel of record on documents and pre-trial communications; trial counsel takes the chair at the trial and post-trial motion phases.
The category exists because trial work is its own discipline. A general-practice litigator who files motions for years without trying a case is not interchangeable with a Nevada attorney who has carried jury and bench trials in state and federal court for decades. When the matter is going to trial, the question for the engaging firm is no longer “who can run discovery” but “who will carry voir dire, opening, the witness list, closing, and the post-verdict motion practice.” Engaging that person early changes the trial.
Local counsel, co-counsel, trial specialist, appellate counsel — definitions
These four categories describe most lawyer-to-lawyer engagements in Nevada. They overlap at the edges; a single engagement can move between categories as the matter advances.
- Local counsel. A Nevada-admitted attorney engaged primarily to satisfy admission requirements when the lead counsel is admitted only in another state. Local counsel signs filings, accepts service, and ensures the matter complies with the local court’s rules. The lead firm runs the matter. In federal court, this is the most common engagement category and is required by D. Nev. Local Rule IA 11-2.
- Co-counsel. A Nevada-admitted attorney engaged as a substantive partner on the matter — sharing strategy, motion drafting, deposition responsibilities, and pre-trial preparation alongside the engaging firm. Co-counsel is a fee-sharing engagement governed by Nevada RPC 1.5(e); the fee-split arrangement and the assignment of responsibility must be disclosed to the client in writing.
- Trial specialist (trial counsel). A Nevada-admitted attorney engaged specifically to carry the trial. The engaging firm prepares the case, conducts discovery, drafts the dispositive motions; trial counsel takes voir dire, opening, the witnesses, closing, and the post-verdict motion practice. Engaging trial counsel before discovery is typically more effective than engaging at the eve of trial; the trial strategy informs what gets developed in discovery.
- Appellate counsel. A separately-engaged attorney who carries the matter from the entry of judgment forward. Trial counsel ≠ appellate counsel as a default; the appellate engagement is typically a different scope of work, a different rate, and often a different attorney. Mr. McKenna’s practice retains appellate engagements separately; the flat-fee for trial does not extend to appeal.
Pro hac vice in Nevada — the state and federal frameworks
When the lead firm is not admitted in Nevada, admission to practice on the matter happens through pro hac vice. Nevada and the federal District of Nevada use distinct frameworks; both must be satisfied if the matter touches both court systems.
In state court, Nevada Supreme Court Rule 42 governs pro hac vice. The applicant submits a verified petition through Nevada-admitted associated counsel, pays the statutory fee, certifies the number of pro hac vice appearances filed in Nevada in the preceding three years, and obtains an order from the court before appearing. SCR 42 caps the number of out-of-state appearances per year and requires the Nevada-admitted associated counsel to actively participate in the matter — not merely sign filings.
In federal court, D. Nev. Local Rule IA 11-2 governs pro hac vice in the District of Nevada. The applicant designates a local Nevada attorney admitted to practice in the District; the local attorney is responsible for ensuring compliance with local rules and is the attorney of record for service purposes. The verified petition is filed with the court, and the order admitting the applicant must issue before any substantive filing on the matter.
In the Ninth Circuit, Circuit Rule 46-2 governs admission for federal appeals. The applicant must be admitted to practice in the United States Supreme Court, a federal district court within the Ninth Circuit, or the highest court of a state. Routine appeals can proceed without separate admission to practice in the Ninth Circuit if local counsel within the circuit is on the brief; for oral argument, separate admission is the cleaner path.
- Nevada Supreme Court Rule 42 ↗Pro hac vice admission in Nevada state courts; verified petition, fee, three-year cap, associated counsel.
- D. Nev. Local Rule IA 11-2 ↗Pro hac vice admission in the District of Nevada; designation of local counsel.
- Ninth Circuit Rule 46-2 ↗Admission to practice in the United States Court of Appeals for the Ninth Circuit.
Fee-sharing and the engagement letter
When more than one lawyer or firm is engaged on a matter, Nevada Rule of Professional Conduct 1.5(e) governs the fee-share arrangement. The rule has three substantive requirements: the division must be in proportion to the services performed by each lawyer (or each lawyer must assume joint responsibility for the representation); the client must agree to the arrangement, including the share each lawyer will receive, in a writing signed by the client; and the total fee must be reasonable.
In practice, the engagement letter for a trial-counsel engagement does several things at once. It identifies the role each firm is playing (lead counsel of record vs. trial counsel), specifies the scope of work (whether trial counsel covers depositions and motion practice or only the trial itself), allocates the flat fee or hourly rate accordingly, and disclosing the fee-share arrangement under RPC 1.5(e) where applicable. A client signature on the engagement letter — not just on the original retainer with lead counsel — is the cleanest path to compliance.
Mr. McKenna’s trial-counsel engagements proceed on a $100,000 minimum retainer paid in full at engagement, with scope established in writing during the consultation. The engagement letter discloses the fee-share arrangement with engaging counsel, the assignment of responsibility, and the costs (experts, investigators, court reporters) that are borne by the client separately. The $100,000 figure is the floor for the minimum trial-specialist scope; broader engagements (early discovery, deposition practice, dispositive motion practice) are scoped accordingly.
- Nevada RPC 1.5(e) ↗Fees — division of fees between lawyers in different firms; written client consent; reasonableness.
Conflict screening
Before any trial-counsel engagement is accepted, conflict screening runs against the existing client list and matter docket. Nevada RPC 1.7 governs concurrent conflicts; RPC 1.9 governs former-client conflicts. For a trial-counsel engagement, the screen typically looks at: (1) the named adverse parties in the new matter, (2) any related entities or affiliated parties, (3) the substantive subject matter (where prior representation involved the same transaction or substantially related matter, RPC 1.9 informed-consent waivers may be required), and (4) attorneys at any party’s prior counsel where a former-firm conflict could arise.
The engagement is declined if the conflict cannot be cleared cleanly. Nevada attorneys cannot screen out conflicts in the same way some other jurisdictions permit; informed written consent from all affected clients is the only path through a substantive conflict, and even then only for situations where adequate representation is reasonable.
Tactical considerations: when to engage trial counsel
The strategic question is when in the matter’s lifecycle to bring trial counsel in. The default for many engaging firms is to wait until trial is on the calendar — after dispositive motions, after the close of discovery. That timing produces the most expensive and least effective version of the engagement. Trial counsel arrives without having shaped the deposition record, without knowing the witnesses, without having the document review in working memory. The trial preparation has to be reconstructed.
The more effective timing is earlier. Engaging trial counsel during the deposition phase — or, in matters where the trial track is clear from filing, at the case-management conference — lets the trial strategy inform what gets developed in discovery. Witnesses are deposed with the trial examination in mind; documents are reviewed for trial usefulness; expert engagement is calibrated to the trial argument rather than to a defense of summary judgment. The engagement is more efficient and the trial is better.
A second tactical consideration is the difference between a settlement-leverage engagement and a trial engagement. When the engaging firm and the client are open to settlement, having trial counsel visibly engaged from the early phase shifts the opposing party’s settlement calculus — they are now negotiating against a defense that is visibly prepared to try the case. Mr. McKenna’s framing of this dynamic, drawn from forty-five years of Nevada practice, is that "it is the ability to go to trial that creates settlement opportunities." That framing applies whether or not the engagement ultimately ends in trial.
What this engagement is not
Trial counsel is not local counsel. The engagement is not a paper-signing role, and the trial-counsel attorney is not standing by to satisfy SCR 42 while the lead firm runs the case. The trial-counsel attorney is the trial.
Trial counsel is not appellate counsel. The trial-counsel engagement covers representation through trial and the post-verdict motion phase. Appeal is a separate engagement under a separate fee structure; the trial counsel may or may not be the appellate counsel depending on the appellate posture and the client’s preference.
Trial counsel is not a discount on full-firm engagement. The $100,000 minimum reflects the actual scope of trial preparation and trial work for a Nevada-trial-ready engagement. Below that floor, the economics force preparation cuts that compromise the trial. Engagements falling below the floor are referred elsewhere or declined.