Former State Rep. Jay Barnes was recently named an Influential Lawyer by Missouri Lawyers Weekly for leading the Special Investigative Committee on Oversight’s investigation of then Gov. Eric Greitens. Because Mr. Barnes was honored in his capacity as a member of the legal profession, the Rules of Professional Conduct must serve as the metric for his conduct.

In the month preceding Gov. Greitens’ scheduled trial, Mr. Barnes presided over an investigation that released three one-sided investigative reports. Before Mr. Barnes released the first report, Judge Rex Burlison described Mr. Barnes’ conduct as “reckless dissemination of information that may taint the jury pool.” Judge Burlison went on to question whether proper “consideration is being given to [the] . . . defendant’s rights to have a fair trial in front of an impartial jury.” Mr. Barnes’ conduct appears to directly have violated Prof.Cond.R. 4–3.6(a), which prohibits public extrajudicial statements that “have a substantial likelihood of materially prejudicing an adjudicative proceeding.” Mr. Barnes’ allegation that Gov. Greitens’ former lover was credible was not only false but also appears to have directly violated Prof.Cond.R. 4–3.6(a), cmt. 5.

Mr. Barnes’ release of investigative reports on April 11, 24, and 30 were contrary to HR 5565. Specifically, Mr. Barnes and his fellow committee members were prohibited from releasing transcripts, reports, or discussing the investigation outside of committee members (with certain exceptions) until “the committee ha[d] concluded its investigation.” Since Mr. Barnes’ committee had not concluded its investigation, the release of transcripts and reports on April 11, 24, and 30 were in violation of HR 5565. Moreover, the April 30 report was based on Mr. Barnes obtaining, almost certainly from the St. Louis Circuit Attorney’s Office, a copy of an interview of Mr. Greitens’ former lover, which was released in violation of a court order. Mr. Barnes appears to have aided the Circuit Attorney’s Office in violating a court order in violation of Prof.Cond.R. 4–8.4(a), (d). The report failed to include Gov. Greitens’ response.

Indeed, subsequently, legal counsel for Mr. Barnes’ investigation Edward Robertson, the former Chief Justice of the Missouri Supreme Court, said “the committee’s report had the desired effect. It caused people associated with the Greitens’ team to offer to do what they have so far refused to do . . . provide information to the committee.” Mr. Barnes then accepted Gov. Greitens’ “offer” for subpoenas to be issued. It is peculiar that the former Chief Justice believes an invitation is required before issuing a subpoena. Indeed, when an investigative report is intended to influence behavior, rather than determine what occurred, it ceases to have any validity as an investigative report.

To be sure, Mr. Barnes would undoubtedly be facing an investigation by the Office of Chief Disciplinary Counsel and almost certain discipline if not for the shield of the Missouri Constitution’s Speech and Debate Clause.

Whether the political community should honor or condemn Mr. Barnes is a question for another forum. That said, Mr. Barnes should be condemned by the political community because his conduct actively undermined democratic government.

For the legal profession, the resounding answer is that Mr. Barnes must be condemned because he failed to adhere to the Rules of Professional Conduct and to fundamental fairness.