Can a lawyer investigate a party, witness, or juror on social media, request access to their nonpublic posts, or use a fake name to do it?

Plain-English summary

A lawyer wants to investigate an opposing party, a witness, or a juror by viewing the person's social-networking site, and discovers there is additional, nonpublic information available only if the lawyer submits an access request through the site. The opinion asks whether the lawyer may review the publicly available information (yes), whether the lawyer or an agent may request access to nonpublic information (yes, qualified), and whether the lawyer may use a username or alias that does not identify the lawyer when requesting access (no, qualified).

On public information, the opinion concludes that viewing publicly available social-media content is not a "communication" prohibited by Oregon RPC 4.2, comparing it to reading a magazine article or a book written by an adversary; this applies to any person, though the opinion cautions that communication with jurors is generally barred. On nonpublic information, the opinion concludes a lawyer may make an access request (often called friending) if the person is not represented on the matter and the lawyer makes no false claim of disinterest. The lawyer must heed Oregon RPC 4.3, which forbids stating or implying that the lawyer is disinterested to an unrepresented person and requires correcting a known misunderstanding of the lawyer's role; but the opinion concludes a simple access request does not imply disinterest, the account holder controls who gets access, and the holder's failure to ask who the requester is does not amount to a misunderstanding. If the holder asks for identifying information, or the lawyer otherwise has reason to believe the person misunderstands the lawyer's role, the lawyer must provide the information or withdraw the request. If the person is represented on the subject, Oregon RPC 4.2 bars the request except through counsel.

On deception, the opinion concludes Oregon RPC 8.4(a)(3) and Oregon RPC 4.1(a) prohibit a lawyer from using subterfuge to shield the lawyer's identity when requesting access, so a lawyer may not use a false identity for that purpose. The one exception is Oregon RPC 8.4(b), the safe harbor that lets a lawyer advise or supervise lawful covert activity to investigate violations of law when the lawyer in good faith believes there is a reasonable possibility of unlawful activity; in those limited instances, the lawyer may advise or supervise another's deception to access nonpublic information. The opinion stresses that a lawyer may not send a friend request to a juror, or have an agent do so, given the rules barring juror contact (Oregon RPC 3.5).

In practice

This opinion was revised in 2026 and interprets the current Oregon Rules of Professional Conduct. The opinion holds that public social-media review is unrestricted because it is not a communication under Oregon RPC 4.2, while seeking nonpublic content is governed by the rules on represented and unrepresented persons and on honesty. Per the opinion, the analysis turns on three lines: a lawyer may friend an unrepresented person if no false claim of disinterest is made and the lawyer identifies themselves when asked; a lawyer must route any request through counsel if the person is represented; and a lawyer may not use a false identity, except within the narrow Oregon RPC 8.4(b) covert-activity safe harbor. The opinion holds that jurors are off-limits for access requests.

Common questions

Q: Can a lawyer look at an opposing party's or witness's public social-media posts?

A: Yes. The opinion concludes viewing publicly available social-media information is not a communication under Oregon RPC 4.2, so it is permitted, comparing it to reading a book the person wrote.

Q: Can a lawyer send a friend request to see a person's nonpublic posts?

A: Yes, qualified. The opinion concludes a lawyer may request access if the person is unrepresented on the matter and the lawyer does not falsely state or imply that the lawyer is disinterested.

Q: Can the lawyer use a fake name or alias to make the request?

A: No. The opinion concludes using subterfuge to hide the lawyer's identity violates Oregon RPC 8.4(a)(3) and Oregon RPC 4.1(a), unless the narrow covert-activity safe harbor in Oregon RPC 8.4(b) applies.

Q: Can a lawyer try to access a juror's nonpublic social-media information?

A: No. The opinion concludes a lawyer may view a juror's public information but may not send an access request to a juror, or have an agent do so, given the rules barring juror contact.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communication with represented persons), Oregon RPC 4.3 (dealing with unrepresented persons), Oregon RPC 8.4(a)(3) and Oregon RPC 4.1(a) (dishonesty and false statements), and the covert-activity safe harbor in Oregon RPC 8.4(b), corresponding to Model Rules 4.2, 4.3, 8.4, and 4.1. It also applies Oregon RPC 3.5 on juror contact.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 4.2 / Model Rule 4.2 (communication with a represented person)
• Oregon RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)
• Oregon RPC 8.4(a)(3), 8.4(b) / Model Rule 8.4 (dishonesty; Oregon covert-activity safe harbor)
• Oregon RPC 4.1(a) / Model Rule 4.1 (false statement of material fact to a third person)

Cases:

• Apple Corps Ltd. v. International Collectors Society, 15 F Supp 2d 456 (DNJ 1998), investigators posing as customers
• In re Carpenter, 337 Or 226, 95 P3d 203 (2004), false identity on a social-media website
• In re Gatti, 330 Or 517, 8 P3d 966 (2000), no investigatory exception for lawyer deception

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-164 (rev 2026) (accessing an adversary's public website); OSB Formal Ethics Op. No. 2005-173 (covert activity); OSB Formal Ethics Op. No. 2005-80 (rev 2026)

See also

• OSB Ethics Op. 2005-164: Contact Through Websites and the Internet
• OSB Ethics Op. 2005-173: Participation in Covert Investigations
• NY State Bar Op. 977: Social Media Petition and Survey in a Pending Case

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2013-189.pdf