Why this engagement is its own category
For a Nevada lawyer whose practice does not include serious criminal defense, a murder, serious felony, sexual offense, or federal matter that walks in the door presents an immediate question: keep it, or place it with a lawyer who tries serious criminal cases. The labels for the arrangements that follow — “direct referral,” “co-counsel,” and “trial counsel” — are not interchangeable. Each describes a different allocation of responsibility, a different relationship with the client, and a different obligation under the Nevada Rules of Professional Conduct.
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 make an appearance while the referring lawyer prepares, but to carry the trial itself. The referring lawyer may stay involved on collateral matters or step back entirely; trial counsel takes the chair at the trial and post-trial motion phases of the criminal case.
The category exists because serious criminal trial work is its own discipline. A general-practice or civil litigator who has never carried a felony jury trial is not interchangeable with a Nevada attorney who has tried serious criminal matters in state and federal court for decades. When a client is facing murder, a serious felony, a sexual offense, or a federal charge in the District of Nevada, the question is no longer “who can file the motions” but “who will carry voir dire, opening, cross-examination, closing, and the post-verdict motion practice.” Placing that person on the matter early changes the defense.
Direct referral, co-counsel, trial specialist — definitions
These three categories describe most Nevada-to-Nevada arrangements for placing a serious criminal matter with trial counsel. They overlap at the edges; a single engagement can move between categories as the matter advances.
- Direct referral. The referring Nevada lawyer sends the client to Mr. McKenna for the criminal matter and steps back from that matter. The referring lawyer’s relationship with the client on other matters — the business, family, or civil work that brought the client in — is preserved; only the serious criminal matter moves to trial counsel.
- Co-counsel. The client retains Mr. McKenna for the serious criminal defense while the referring Nevada lawyer stays involved on the matter — the two work jointly on strategy, motion drafting, and pretrial preparation. The referring lawyer keeps a role in the representation rather than stepping away, and the assignment of responsibility between the lawyers is set out for the client in writing.
- Trial specialist (trial counsel). A Nevada-admitted attorney engaged specifically to carry the trial. The referring lawyer or co-counsel prepares the case and develops the record; trial counsel takes voir dire, opening, the witnesses, closing, and the post-verdict motion practice. Engaging trial counsel before the case is built is typically more effective than engaging on the eve of trial; the trial strategy informs what gets developed beforehand.
The engagement letter
The engagement letter for a trial-counsel engagement does several things at once. It identifies the role each lawyer is playing (referring lawyer or co-counsel vs. trial counsel) and specifies the scope of work — whether trial counsel covers pretrial and motion practice or only the trial itself — and allocates responsibility accordingly. A client signature on the engagement letter, not just on the original retainer with the referring lawyer, keeps the roles clear.
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 referring lawyers is to wait until trial is on the calendar — after the preliminary hearing, after pretrial motions, after the investigation has run its course. That timing produces the most difficult and least effective version of the engagement. Trial counsel arrives without having shaped the pretrial record, without knowing the witnesses, without having the investigative work in working memory. The trial preparation has to be reconstructed.
The more effective timing is earlier. Placing trial counsel on the matter during the investigation and pretrial phase — or, where the trial track is clear from arraignment, at the outset — lets the trial strategy inform what gets developed. Witnesses are interviewed with the trial examination in mind; the defense investigation is calibrated to the trial argument rather than to a single pretrial motion; expert engagement is scoped to the guilt- or penalty-phase theory. The engagement is more efficient and the defense is better.
A second tactical consideration is the difference between a matter headed for negotiation and one headed for trial. When the referring lawyer and the client are open to a negotiated resolution, having trial counsel visibly engaged from the early phase shifts the prosecution’s 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 matter ultimately ends in trial.
What this engagement is not
Trial counsel is not a paper-signing role. The trial-counsel attorney is not standing by to make an appearance while the referring lawyer runs the case; the trial-counsel attorney carries the trial.
The trial-counsel engagement is defined by its scope. It covers representation through trial and the post-verdict motion phase; the engagement is built around carrying the case to verdict and preserving the record, not around the work that follows entry of judgment.