(concurring). I do not agree with the court’s conclusion that the judge lacked authority (apart from the Superior Court’s inherent power) to examine the attorney’s fees pursuant to G. L. c. 152, § 15 (1988 ed.).
That statute requires a judge, when the settlement of a third-party action occurs during trial (as it did here), to examine the merits of the settlement to ensure “the protection of the rights and interests of the employee.” Surely, it is not a violation of this statutory language to permit a judge, when appropriate, to examine the reasonableness of the employee’s attorney’s fees and any agreement pertaining thereto, particularly where the fee amounts to a sizeable portion of the settlement. The language quoted from the court’s opinion in DiMartino v. Quality Indus. Propane, Inc., 407 Mass. 171, 176 (1990), in my view, is not decisive. The DiMartino case concerned the sole issue whether an insurer, who was not a party to the employee’s third-party action, could challenge the allocation of the proceeds of the settlement when the insurer’s lien under § 15 was satisfied in full. The passage relied on by the court was written to reject the insurer’s argument that, notwithstanding full satisfaction of its financial interests, it was entitled to an offset against possible future workers’ compensation benefits that might be due Gagnon. The question of attorney’s fees obviously was not raised or considered in DiMartino, so to say, as the court does, that the quoted language forecloses the judge’s authority under § 15 to evaluate the reasonableness of the attorney’s fee is an unjustified extension of the decision’s holding. The attorney’s fee in a case like this can constitute a very large deduction from the settlement, is an integral part thereof, and, when appropriate, should be examined by the judge under the statutory mandate that the court must review all the components of the settlement “to . . . protect [ ] ... the rights and interests of the employee.”
I agree with the court that the attorney’s fee in this case should not have been reduced. The evidence before the judge sufficiently indicated that the contingent fee agreement was reasonable “in light of the circumstances prevailing at the *70time of [the] making [of the agreement].” S.J.C. Rule 3:05 (6), as appearing in 382 Mass. 762 (1981). This conclusion is reinforced by the fact that the client, Gagnon, has made no objection to the contingent fee agreement and has affirmatively stated his satisfaction both with the work done and the percentage charged by Goodman. It is also a consideration that the one-third percentage has become institutionalized in the practice of the litigation bar as the minimum rate to be charged in the typical tort case. Change, if it is to come, should not come suddenly and to the disappointment of longstanding expectations.
The judge, however, has touched upon a larger issue. His memorandum frames that issue in this manner:
“Contingent fee agreements made in a good faith effort reasonably to comply with Rule 3:05 are no longer regarded as champertous, and they have become an important part of the administration of justice. They serve a very beneficial public purpose. They have been said to be the ‘poor man’s key to the courthouse’ because they do provide a method whereby civil claims can be filed and litigated by persons who would otherwise be unable to afford the assistance of counsel. They are, nevertheless, a matter of special judicial concern and subject to strict supervision by the court ....
“I am satisfied (both on the basis of my own experience as a practicing attorney and as a trial judge as well as by the evidence presented at the hearings) that in the case of a civil tort action in which damages are sought for personal injuries a contingent fee of 33 % of the amount recovered is reasonable to a point, depending (among other factors of course) upon the size of the recovery ultimately obtained. I am also satisfied, however, that as the size of the recovery (and hence the size of the fee) increases, the spread between the attorney’s fee and the fair value of the time, effort and skill that he devoted to earning that fee widens — and at some point the fee becomes unreasonable and even (if the spread *71becomes wide enough) outrageous or unconscionable. “One should not lose sight of the fact that under our law a recovery for a personal injury is limited, at least in theory, to the fair and reasonable value of the pain and suffering, mental anguish, reasonable medical expenses, disfigurement, disability and lost earning capacity, both past and future, sustained by the client. However, attorney’s fees incurred by the client are not recoverable in such a case, either as part of or in addition to his damages. Any fee that the attorney exacts from the client under a contingent fee agreement must therefore reduce the client’s compensation for his injury below what is fair and reasonable. When, as in this case, the injury sustained by the client is catastrophic, the amount of the reduction can become enormous unless some rule of reason is applied to the application of the contingent fee. It is, after all, Mr. Gagnon and not Mr. Goodman who must spend the remainder of his life confined to a wheelchair with no bowel or bladder control and with constant dependence upon others to assist him in the normal tasks of day-to-day living . . . .” (Emphasis in original; citation omitted.)
As the judge noted, the Legislature has dealt with this problem in the area of medical malpractice. General Laws c. 231, § 601, added by St. 1986, c. 351, § 27, became effective on July 23, 1986. That statute provides, in pertinent part, that an attorney may not contract for, or collect, a contingent fee in a medical malpractice action in excess of the following limits: (1) 40% of the first $150,000 recovered; (2) 33 Vs % of the next $150,000 recovered; (3) 30% of the next $200,000 recovered; and (4) 25% of any amount by which the recovery exceeds $500,000. The statute goes on to provide that nothing therein shall preclude a court from assessing reasonable attorney’s fees at any amount below these specified limits, or from determining that attorney’s fees below such limits are unreasonably high in a particular case.
*72At a time when the gap between the service and the fee in tort cases appears to be becoming more and more pronounced, there may be a need to establish a better sense of proportion. This case is illustrative of the problem.1 The question raised by the judge deserves honest debate.
The judge noted the existence of facts which tended to question the reasonableness of the fee agreement. At the time of the accident, Gagnon was lawfully parked in the breakdown lane of the Massachusetts Turnpike near a disabled tractor-trailer truck. The disabled tractor-trailer was being driven by a young woman who had pulled off the travel lane because she had noticed that the mud flaps on her truck were rubbing against her rear trailer wheels. To help the woman, Gagnon went underneath the rear of the trailer to attempt to correct the problem. While he was in that position a loaded garbage truck operated by Shoblom veered off the highway into the breakdown lane and crashed into the tractor-trailer. The woman was killed as the result of the collision, and Gagnon sustained massive injuries which left him a paraplegic. Thus, when the contingent fee agreement was signed Goodman knew that the liability aspect of Gagnon’s case was very strong, that his injuries were catastrophic, and that it was apparent that Gagnon would receive a very substantial judgment or settlement from Shoblom’s corporate employer.
Additionally, the judge noted that this was not a single case from Goodman’s point of view. Goodman had also been retained to represent the administrator of the woman’s estate in his claim for wrongful death, conscious suffering and punitive damages against Shoblom and his employer, and Goodman was later retained to represent the woman’s mother in her individual claim for negligent infliction of emotional distress. Preparation of Gagnon’s case would also benefit these claims for which Goodman was charging an additional fee.